Social Security Administration Moves To Abolish Treating Physician’s Rule. Backlog Of Hearing Requests Sure To Worsen.

New Rule May Worsen Backlog For Social Security Disability Claimants

By the time Stephenie Hashmi of Lenexa, Kansas, was in her mid-20s, she had achieved a lifelong dream: She was the charge nurse at one of Kansas City’s largest intensive care units. But even as she cared for patients, she realized something was off with her own health.

“I remember just feeling tired and feeling sick and hurting, and not knowing why my joints and body was hurting,” Hashmi says.

Hashmi was diagnosed with systemic lupus, a disease in which the body’s immune system attacks its own tissues and organs.

She’s had surgeries and treatments, but now, at age 41, Hashmi is often bedridden. She finally had to leave her job about 6 years ago, but when she applied for Social Security disability benefits, she was denied.

                                                                                            

“I just started bawling. Because I felt like, if they looked at my records or read these notes, surely they would understand my situation,” Hashmi says.

Lisa Ekman, director of government affairs for the National Organization of Social Security Claimants Representatives, says Hashmi’s struggle with the application process is not unusual.

“It is not easy to get disability benefits. It’s a very complicated and difficult process,” Ekman says.

Right now, just about 45 percent of people who apply for Social Security disability benefits are accepted, and getting a hearing takes an average of nearly 600 days.

The Kansas City office’s average hearing time is closer to 500 days, but its approval rate is slight lower at 40 percent.

The Backlog started snowballing about 10 years ago, around the time Jason Fichtner became acting Deputy Commissioner of the Social Security Administration (SSA).

He says that during the Great Recession, a lot of people who had disabilities applied but weren’t necessarily unable to work.

“But they’re on the margin,” Fichtner says. “They can work, but when the recession happens, those are the first people who tend to lose their jobs, and then they apply for disability insurance.”

There are now more than a million people across the country waiting for hearings. Adding to the strain, the Social Security Administration’s core operating budget has shrunk by 10 percent since 2010.

This spring, the SSA introduced changes to fight fraud and streamline the application process, including a new fraud-fighting measure that removes the special consideration given to a person’s long-time doctor.  (This is known as The Treating Physician’s Rule)

Lisa Ekman says this is a mistake.

“Those changes would now put the evidence from a treating physician on the same weight as evidence from a medical consultant employed to do a one-time brief examination or a medical consultant they had do a review of the paper file and may have never examined the individual,” Ekman says.

She says this could lead to more denials for disabled people with complex conditions like lupus, multiple sclerosis or schizophrenia. These illnesses can affect patients in very different ways and may be hard for an outside doctor or nurse to assess.

She says more denials will lead to more appeals, which will only increase the backlog.

She is correct. The Treating Physician’s Opinion is controlling.

https://judgelondonsteverson.me/2016/06/24/the-treating-physician-rule-is-controlling/

But former administrator Fichtner, now a senior research fellow at George Mason University’s Mercatus Center, says the SSA is obligated to weed out any fraud it can, including the admittedly rare cases of treating physicians tipping the scale in favor of their patients.

He says the SSA can still prioritize applicants.

“For patients that are really in dire condition and really have major disabilities, I don’t think they have to worry about this rule change,” Fichtner says.

He acknowledges, however, that the backlog needs attention and says the agency has safeguards to monitor whether the rule is working.

Back in her kitchen in Lenexa, Stephenie Hashmi’s husband Shawn prepares a family dinner she won’t be able to eat because she’s having problems with her esophagus.

Stephenie puts on a brave smile, but the progression of her illness and the ordeal with Social Security have made her increasingly pessimistic.

After several rejections, she’s now on her final appeal. Her hearing is scheduled for November – of   2018.

Categories: Social Security Benefits | Tags: , , | 2 Comments

SSA Judge Pleads Guilty To Taking Bribes

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A former Social Security Administration (SSA) Administrative Law Judge (ALJ) pleaded guilty on  May 13, 2017 to taking more than $609,000 in bribes from a disability lawyer who called himself “Mr. Social Security.”

The former judge, ALJ David Black Daugherty, 81, of Myrtle Beach, South Carolina, pleaded guilty to two counts of receiving illegal gratuities, according to a press release from the U.S. Department of Justice and stories by the Washington Times and the Lexington (Kentucky) Herald-Leader.

Daugherty, who heard cases in West Virginia, was accused of taking payments to make favorable rulings in more than 3,100 cases for clients represented by Kentucky lawyer Eric Conn, obligating the government to pay more than $550 million in lifetime disability payments.

Conn, who once called himself “Mr. Social Security,” pleaded guilty in March. He is scheduled to be sentenced in July, according to the Herald-Leader.

Daugherty admitted he sought out Conn’s cases, told him what type of medical evidence to submit, and awarded benefits without holding hearings. Daugherty accepted the illegal payments between November 2004 to April 2011, according to the press release.

The government is holding new hearings to determine whether the claimants in the cases are entitled to benefits. More than half of the applications have since been disapproved, according to the Washington Times. Many have unfortunately committed suicide.

The actual payout by the Social Security Administration in the cases was $46.5 million, an amount that Conn promised to pay the government. He also promised to pay $5.7 million, representing the fees he earned in the cases.

Daugherty has agreed to pay the government $609,000. He is scheduled to be sentenced on Aug. 25. The charges carry a maximum prison sentence of four years, according to the Herald-Leader.

Charges are still pending against a psychologist accused of falsifying mental impairment evaluations.

(By Debra Cassens Weiss)

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Bribery Judge Was Social Security Administration’s Highest Producing Judge

A former Social Security Administration judge from Huntington has pleaded guilty to taking more than $600,000 in bribes in cases involving clients of Kentucky lawyer Eric C. Conn, who is facing prison time for a scheme to defraud the government of nearly $600 million in disability payments.

The 81-year-old David Black Daugherty pleaded guilty Friday May 13, 2017 in federal court in Lexington to two counts of taking illegal gratuities. Daugherty agreed to pay the government $609,000 as part of his plea.

                                                                                                                 

                                                                                                      (Above, see Judge David Black Daugherty)

But Judge Daugherty worked for Frank Cristaudo, who was the Chief Administrative Law Judge. (CALJ). 

                                                                                                              

                                                                                                        (Above, see SSA CALJ Frank Cristaudo)

They both worked for Social Security Commissioner Michael Astrue.

                                                                                                             

                                                                                                (Above, see SSA Commissioner Michael Astrue)

Judge Daugherty was working to eliminate the “back log”.

The Chief Administrative Law Judge had and has day-to-day oversight of all of SSA’s’s hearing operations.

Judge Cristaudo testified before Congress that he wanted to implement a comprehensive plan to eliminate the backlog of hearings. By eliminating the backlog, he would improve hearing office productivity and the timeliness of SSA hearings and decisions.

Judges like ALJ Dave Daugherty were at the heart of his operation. He testified that he would be monitoring the workloads of these Judges and their cases carefully.

He had selected a number of excellent judges including Judge Daugherty. He needed more judges like Judge Daugherty who were well-suited to SSA’s type of work – judges who were capable of thriving under the workload demands of SSA’s high-volume, electronic hearing operation. Judge Daugherty was the most prolific high producer that he had.

After successfully eliminating SSA’s 1,000 or more day-old cases in FY 2007, he focused on reducing the 900 or more day-old cases by the end of FY 2008.  He testified that he believed a backlog of aged cases interfered with the normal hearing office workflow. Productivity was up because of Judge Daugherty and others who decided cases without holding Hearings.  The new judges  were trained by the highest-producing judges in SSA’s ALJ corps, judges like Judge Dave Daugherty.

The complete text of Chief Judge Frank Cristaudo’s testimony can be read at:

(See   https://www.ssa.gov/legislation/testimony_091608.html)

Daugherty faces a maximum sentence of four years. Sentencing is scheduled for August 25, 2017.

The case involved thousands of clients of Conn, who also has pleaded guilty. He is scheduled to be sentenced in July and faces 12 years in prison. Conn has agreed to pay $5.7 million to the government and pay $46.5 million to the Social Security Administration.

The investigation focused on actions between 2006 and 2011, a time when Conn earned millions with Social Security cases and Daugherty became one of the most prolific administrative law judges both in number of cases over which he presided and the staggering rate at which he approved benefits, which neared almost 100 percent. He was a “high producer” for Social Security Commissioner Michael Astrue.

Conn promoted himself as “Mr. Social Security” and built a large practice from his offices along U.S. 23 in Floyd County, Kentucky, where a replica of the Lincoln Memorial still stands in the parking lot.

Daugherty allegedly assigned Conn’s cases to himself in Huntington against court policy and communicated with Conn as to what types of medical records he would need to have to approve benefits in the cases. In his criminal plea agreement, Attorney Conn said Judge Daugherty in October 2004 asked him for $5,000 to pay for addiction treatment for a family member, the Herald-Leader reported. Daugherty confirmed that account in his plea Friday, the newspaper said.

Conn then began to pay Daugherty $10,000 each month, according to the plea agreement.

At one time, Daugherty was approving benefits at a 99.7 percent rate, while the national average was below 70 percent.

The scheme came to national attention in 2013 when two employees at the Huntington Social Security office, along with some of Conn’s employees, testified before the U.S. Senate after a two-year Homeland Security investigation.

A congressional report showed Daugherty awarded $2.5 billion in lifetime benefits to Conn’s clients and others during his final years on the bench.

Beyond the abuse of federal dollars, the case continues to affect hundreds of people in western West Virginia and eastern Kentucky who went to Conn’s firm to seek disability benefits. Once criminal charges were filed against the lawyer, the Social Security Administration reviewed about 1,500 cases handled by Conn, and lawyers estimate about 800 people have lost their benefits.

Daugherty was suspended when the allegations surfaced and was allowed to retire. The West Virginia Bar Association stripped Daugherty of his law license in 2014, and he relocated to Myrtle Beach shortly thereafter. But SSA cannot take his pension away.

The Huntington native had been an administrative judge for Social Security since 1990, following a varied judicial and political career in Cabell County.

The son of Judge Russell Daugherty, he was a graduate of Marshall University and the West Virginia College of Law and was elected to the House of Delegates from Cabell County in 1968 and 1970. He served as a circuit court judge from 1978 until 1984.

Categories: Social Security Judges | Tags: , , | 2 Comments

Granny Kills, Then Steals Dead Husband’s Social Security Benefits

Granny Kills and Steals; She Killed Husband, Then Collected His Social Security Benefits


A federal grand jury indicted Opal Elaine Tillman in April 2017 for fraudulently claiming nearly $168,000 in Social Security widow’s benefits on the death of a husband she killed, announced Acting U.S. Attorney Robert O. Posey . A six-count indictment filed in U.S. District Court charges Opal Elaine Tillman, 71, with five counts of wire fraud for causing the SSA to wire benefit payments, which Tillman was not entitled to receive, to her account at Regions Bank in Jefferson County between May 2012 and September 2016. Count Six of the indictment charges Tillman with theft of government property for stealing more than $100,000 from the SSA. The indictment seeks to have Tillman forfeit $167,830 to the government.
According to the indictment, Tillman was convicted in Alabama in June 1988 for killing her husband, Walter R. Tillman, on March 1, 1987. The month he died, Opal Tillman applied for Social Security Title II benefits on her husband’s work record. Title II benefits encompass old age, survivor and disability insurance payments. In her application Tillman wrote a statement acknowledging that she understood that “if I am convicted of felonious homicide any social security monies I receive on Mr. Tillman’s Social security record will constitute an over-payment and I will be liable to repay this money,” according to the indictment. She then requested monthly benefits for her and her children to begin as soon as possible.
While Opal Tillman was in prison in November 1988, the SSA notified her of an over-payment of benefits and explained: “A person who has been convicted of the felonious and intentional homicide of a wage earner cannot be entitled to monthly benefits, underpayments, or the lump-sum death payment on the earnings record of that wage earner,” according to the indictment.
Opal Tillman was released from prison into the Jefferson County Community Corrections Program in December 1996.
In October 2009, she applied by telephone to the SSA for widow’s benefits on the work record of Walter Roderick Tillman, according to the indictment. Opal Tillman provided her deceased husband’s Social Security number, dates of birth and death, and verification of their marriage for the application, the indictment charges.
Opal Tillman began receiving benefits Nov. 9, 2009, on the work record of the man she killed, according to the indictment. The monthly benefits continued until Sept. 14, 2016.
The maximum penalty for wire fraud is 20 years in prison and a $250,000 fine. The maximum penalty for theft of government property is 10 years in prison and a $250,000 fine.
An indictment contains only charges. A defendant is presumed innocent unless and until proven guilty.

In an unrelated case, Opal Elaine Tillman was arrested in 2015 on charges that she stole stole more than $60l,000 from an elderly couple she was supposed to be caring for. In that case, she pleaded guilty last month to financial exploitation of the elderly and was sentenced to 10 years in prison with 18 months to serve.
While Tillman was in prison in November 1988, the SSA notified her of an overpayment of benefits. They explained to her, “A person who has been convicted of the felonious and intentional homicide of a wage earner cannot be entitled to monthly benefits, underpayments, or the lump-sum death payment on the earnings record of that wage earner.”
Tillman was sentenced to 35 years in prison for her husband’s death, but in December 1996 was released from prison into the Jefferson County Community Corrections program.
In 2009, federal authorities say, she applied by telephone to the SSA for widow’s benefits on the work record of her dead husband. For the application, she provided his Social Security number, dates of birth and death, and verification of their marriage. She began receiving those benefits on Nov. 9, 2009 on the work record of the man she killed, according to the indictment. Those monthly payments continued until Sept. 14, 2016.
The maximum penalty for wire fraud is 20 years in prison and a $250.000 fine. The maximum penalty for theft of government property is 10 years in prison and a $250,000 fine.

“I think there is a special place for people that take advantage of our senior citizens,” Chief Deputy Randy Christian said of Opal Elaine Tillman’s arrest.

Two years ago, Tillman was working as a housekeeper and caregiver for an elderly Jefferson County couple. The Jefferson County Sheriff’s Office received a complaint that she had stolen cash and property from an 87-year-old woman and her husband.
Family members told investigators they had noticed several suspicious transactions on the victims’ checking account. Tillman had been working as a housekeeper for the victims in 2011 on a part-time basis, but had taken on more responsibilities as the wife’s health declined.
In all, authorities said, Tillman stole more than $60l,000 from the couple. “I think there is a special place for people that take advantage of our senior citizens, most especially those placed in a position of trust,” Jefferson County sheriff’s Chief Deputy Randy Christian said at the time.
Tillman pleaded guilty to those charges on April 4, 2017. She is currently listed as an inmate at Julia Tutwiler Prison for Women. Her parole on the murder charge has been revoked. Her minimum release date is 2023, but she will come up for a parole hearing next year on the state charges.
A trial date on the new, federal charges has not been announced.

Categories: Social Security Benefits | Leave a comment

Social Security Judge Paid $14,000.00 A Month Not To Hold Hearings. Just Decide The Cases

Mr. Social Security, Attorney Eric Conn and two others conspired to have the Social Security Administration pay a total of $600 million in disability benefits to thousands of people without regard to whether they actually deserved the money.

Flamboyant Social Security lawyer Eric C. Conn, who won disability checks for thousands of people in Eastern Kentucky but caused heartache for many former clients after he was accused of cheating on cases, pleaded guilty Friday in a federal fraud case.

Conn, 56, pleaded guilty to one count of stealing from the Social Security Administration and one count of paying illegal gratuities to a federal judge.

This lawyer, Eric Conn, has an Affirmative Defense. He could say Judge Daugherty “Entrapped” him.

The Judge asked for bribes in exchange for granting benefits in each case. The Judge demanded from $10 thousand to $14 thousand a month in payoffs.

The Judge knew how much each case was worth in terms of benefits; Past Due benefits and prospective monthly benefits for life. These are based on the AOD, DOD, the age and (RFC) Residual Functional Capacity of the Claimant in each case. (AOD is Alleged onset date) (DOD is Determined onset date)
The Judge had wide discretion in each case to adjust these variables to obtain maximum benefits.
The Lawyer Conn may have been an unwilling dupe of Judge Daugherty.
Atty Conn could plead “Entrapment “.

Conn, who lives in Pikeville, admitted he submitted false documentation for clients seeking disability payments and paid off a federal administrative law judge who approved the claims.

“I submitted or allowed the submission of medical records that I knew to be fraudulent in nature,” Conn said when U.S. District Judge Danny C. Reeves asked him to describe his illegal conduct.

Conn admitted he submitted false documents in “well over” 1,700 cases, the Department of Justice said.

Conn declined comment after the hearing. However, his attorney, Scott White, said people “should reserve judgment” about Conn’s role in the fraud until after the trial of two others charged in the case.

The other defendants are David B. Daugherty, a former Social Security judge accused of rubber-stamping benefit claims for Conn’s clients in return for payoffs, and Pikeville psychologist Alfred Bradley Adkins, who allegedly signed false mental-impairment evaluations of Conn’s clients.

Conn faces up to 12 years in prison, though his sentence will likely be lower under advisory federal guidelines. He is to be sentenced July 14.

He agreed to pay the government at least $5.7 million he received as a result of engaging in fraud. His plea agreement also calls for $46.5 million in restitution to the Social Security Administration.

Conn was indicted last April on more than a dozen charges, including mail and wire fraud, conspiring to retaliate against a witness, destroying evidence and money laundering.

Those charges will be dismissed as part of his plea arrangement.

Reeves allowed Conn to remain out of jail pending sentencing, but continued an earlier order of home detention.

Conn built a lucrative practice specializing in federal disability cases, promoting himself on television and on billboards throughout Eastern Kentucky.

He worked out of an office complex made of five connected mobile homes in Floyd County with a 19-foot-tall statue of Abraham Lincoln out front, hired bluegrass music legend Ralph Stanley to appear in a music video for him and once put a Miss Kentucky USA on the payroll for $70,000 a year as his public relations director.

                                                   (Miss Kentucky, Kia Hampton)

Conn will sell his house and forfeit the office complex and Lincoln statue to help pay the government.

The Social Security Administration paid Conn’s firm $23 million from August 2005 to September 2015 for his work, according to one court order, making him one of the top earners in the program nationally.

However, whistleblowers in the Huntington, W.Va. office of the Social Security Administration, which handles appeals of cases from Eastern Kentucky, raised red flags about Conn’s relationship with an administrative judge there, David B. Daugherty.

A federal investigation ultimately led to charges that Conn falsified medical documents to show his clients were disabled, and paid doctors $300 to $450 apiece to sign completed evaluations supporting the claims.

Then, Daugherty allegedly arranged for Conn’s cases to be assigned to him — even allegedly taking over cases after they’d been assigned to other judges — and approved the claims, often without holding hearings.

Conn said in his plea agreement that the scheme went back to October 2004.

Daugherty told Conn at a hearing that his rulings were making Conn a lot of money, and then solicited $5,000 from Conn to help a family member with addiction rehabilitation, Conn told prosecutors.

Conn said that when he didn’t pay right away, Daugherty called him later the same day, reminded him of Daugherty’s favorable rulings and said he “needed to have that money,” the agreement said.

Conn, knowing the success of his practice depended in part on a good relation with Daugherty, paid him. The next month, Daugherty told Conn he would be needing $10,000 a month, the plea agreement said.

When Conn paid the first $10,000, Daugherty said, “Let’s not be stupid here,” cautioning Conn against withdrawing more than $10,000 at a time from his bank account to pay Daugherty because the bank would have to report the transaction.

After the scam had been going on for some time, Daugherty told Conn to come up with more varied false medical reports to avoid suspicion.

Atty Conn paid Judge Daugherty $8,000 to $14,000 a month from late 2004 through the spring of 2011, when Daugherty quit after Social Security investigators began an inquiry, according to the agreement Conn signed.

Judge Daugherty was actually paid “not” to hold Hearings. He decided the cases without Hearings.

He did not review the Record either. He simply granted/paid every case. The Judge was a “high producer”. He closed more cases, up to 1800 a year, than any other ALJ. The average ALJ closed about 500 a year. But he did not hold Hearings. He rubber stamped blocks of cases without reviewing the case files.

It is impossible to decide 1,800 cases a year as Daugherty did. There is not enough time to hold the Hearings and write the decisions. A Judge cannot publish 200 decisions a month.

There was the gross disparity in the length of hearings, that is, the time a Social Security claimant actually spends in front of a judge. After waiting for an average of 2 years for their day in court, most claimants spend less than an hour in an actual hearing. Most cases last about an hour.  Some judges were found to make snap decisions in just a few minutes. There are reports that some judges simply flip a coin to decide whether a claimant wins or loses. Since the judges do not even write their own decisions, some decision writers have complained that the judges’ decision writing instructions consist of nothing more than a “smiley face’ or a “frowning face” on a piece of paper. And the worst case of all are the reports of judges who decide over 200 cases a month without even bothering to hold a hearing. They simply “pay the cases” to get rid of them. This is called “paying down the backlog” in the language of the Social Security Office. The backlog of over 770,000 disability claimants could be a factor in the rapid decisions.

(Read more at http://www.amazon.com/socialNsecurity-Confessions-Social-Security-Judge/dp/1449569757)

For years attorneys have been known to forum shop. They search for Hearing Offices that have a high degree of reversals of cases on appeal; or, they search for judges known to be more likely to grant benefits.The Social Security Administration has halted the process of informing applicants of which judge will preside over their hearings. This practice will prevent SSD attorneys from “shopping” for a lenient judge.

For 13 years Judge Daugherty was allowed to pervert the SSA System without any action by SSA. Judge Daugherty operated with the implicit authorization of The SSA. They knew and implicitly approved of what he was doing. He was serving their clients; i.e., disability claimants. 

 Contrary to all logic, Social Security Judge Dave Daugherty was paid up to $14,000.00 a month by Atty Eric Conn to grant his clients benefits without holding a Hearing or in some cases without reviewing the medical records.
Judge Daugherty received over $2,000,000.00 in bribes between 2002 and 2015.
The Social Security Administration continued to pay him his salary of $167,000.00 a year because he was a “high producer” deciding more cases than most other Judges.

Conn confirmed he destroyed records after learning of the investigation.

Conn’s plea deal said Adkins began doing mental-impairment tests on his clients in 2004. Adkins said he spent more than three hours with people, but in fact spent 30 minutes and estimated their IQ — rather than actually testing — and assigned scores to make them appear more disabled, Conn’s plea agreement said.

Adkins didn’t like doing the assessments, however, so in 2006, he told Conn to fill them out himself, saying “It’s all bull—- anyway,” according to the plea.

Conn created several standard templates on impairment and filled them out, and Adkins signed them, Conn told authorities.

The plea agreement said Conn faked X-ray reports as well, and lists two unnamed, un-indicted co-conspirators who allegedly took part in the fraud.

The claims for Conn clients approved by Daugherty and others based on fraudulent documents obligated the SSA to pay $550 million in lifetime benefits, and the government actually paid $46.5 million to people that the agency has determined were not eligible to receive, the plea document said.

Daugherty and Adkins have pleaded innocent.

The Social Security Administration was complicit in the fraud scheme. It went on for about 13 years. They threaten to fire anyone who went public. Several Whistleblowers were punished as it is.

The SSA benefited by the fraud and deception. The SSA manipulated the statistics to show improving numbers in lowering the Back Log of over due Hearings.

SSA even sent Judge Daugherty difficult cases to get rid of, cases that were embarrassingly old and needed to be buried. It is common practice today to send cases from one Region to another and from one Hearing Office to another.
Commissioner Mike Astrue was the SSA Commissioner during part of the 13 years. The Chief Judge Frank Cristado (CALJ) knew about Judge Daugherty and the fraud scheme. He must have discussed it many times over coffee with SSA Commissioner Astrue and the SSA Chief Counsel.
This fraud was no secret. Commissioners had gone on and Chief Judges have retired or been fired but this fraud was an “open secret ” discussed in the 9 Regional Offices and Hearing Offices across the country. Even in California it was common knowledge.
So, now Atty Eric Conn and Judge Daugherty are to take the fall for the entire episode. It took hundreds of staff employees and all of the Headquarters people to perpetuate this charade on the American people. Atty Conn is a fall guy.

Two former employees in the Huntington SSA office, Jennifer Griffith and Sarah Carver, said they tried for years to bring attention to suspected wrongdoing by Daugherty and Conn.

The two, who faced retaliation after making reports to superiors and ultimately left the agency, attended Conn’s plea hearing.

“I’m glad to see that someone is finally being punished,” Griffith said.

However, both said there were others in the agency who took part in improper or illegal conduct.

They are suing under the federal False Claims Act, which allows whistleblowers to get a portion of the money the government recovers in fraud cases.

In May 2015, nearly a year before Conn was indicted, the Social Security Administration(SSA) abruptly notified hundreds of his former clients that the agency would suspend their checks while redetermining if they were still eligible.

The SSA said it was taking that action because there was reason to believe some cases Conn’s firm handled included fraudulent information from four doctors.

The move was a blow in Eastern Kentucky, where disability income is a significant part of the economy.

The SSA decided not to cut off off checks during the re-determination process after Republican U.S. Rep. Hal Rogers interceded.

However, SSA went ahead with re-determination hearings.

The SSA allowed Judge Daugherty and Attorney Conn to operate their fraud scheme for over 13 years. That is over 150 months that SSA knew and paid bogus benefits in bogus cases. Why? To eliminate a Back Log of cases?

 This benefited the SSA Commissioners, Mike Astrue and others. It allowed them to testify on the Hill about bringing down the Back Log of overdue cases waiting for a Hearing. Some people were waiting about 5 years to get a Hearing.

 This fraud scheme was beneficial to the SSA bean counters in Washington DC. It allowed them to pad their statistics and maybe advance their careers.

The SSA ultimately identified about 1,500 beneficiaries, most of them in Eastern Kentucky, for re-determination hearings, said Prestonsburg attorney Ned Pillersdorf, who led an effort to find attorneys for the people.

Most of the hearings are over, and a little less than half the people won decisions to keep their benefits, meaning about 800 people lost money they depended on, Pillersdorf said.

“It’s a humanitarian crisis,” Pillersdorf said.

People who lost benefits can appeal.

Pillersdorf is representing former Conn clients in a class-action lawsuit that seeks damages from him. His guilty plea is good news in that effort to get people money, Pillersdorf said.

(Well-known disability lawyer Eric Conn pleads guilty in federal fraud case; March 24, 2017;

Estep, Bill; Lexington Herald Leader)

Eric C. Conn opened his law practice 23 years ago in a trailer in his hometown of Stanville, Kentucky, population 500. There, he built the third most lucrative disability firm in the nation.

When the Dyes went looking for a lawyer in 2008, Conn was everywhere.

He paid young women he called “Conn’s hotties” to attend events across the region with his 1-800 number printed across their tank tops. He erected a 19-foot replica of the Lincoln Memorial in the parking lot of his law complex at a cost, he claimed, of a half-million dollars. He commissioned life-sized Conn effigies to sit atop billboards on the highways; in an online ad, he bragged that he had sent a local boy with terminal cancer to Disney World, and closed with a preacher’s benediction giving thanks to God for Conn’s kindness.

Tim Dye hurt his back in the mines years ago and a car wreck in 2008 aggravated his injuries. He had surgery for ruptured discs and disintegrating cartilage. He resisted applying for disability, his wife said, until it got to where he couldn’t push in the clutch in his truck or bend over to tie his shoes.

His application was denied.

About three-quarters of applicants’ initial claims are rejected, and many turn to lawyers to help them appeal. That means big money for attorneys doing disability claims in bulk. If they win on appeal, applicants are entitled to payments dating back to when they became unable to work and lawyers get a chunk of that money, paid directly by the agency.

Conn racked in more than $20 million in fees.

Media reports in 2011 questioned his relationship with government-employed Administrative Law Judge David Daugherty, who approved nearly all of Conn’s clients for disability. In 2013, former U.S. Senator Tom Coburn, a Republican from Oklahoma, led an investigation into abuse of the disability program. He entitled his report, “How Some Legal, Medical and Judicial Professionals Abused Social Security Disability Programs for the Country’s Most Vulnerable: A Case Study of the Conn Law Firm.”

For 161 pages, it described an elaborate system in which Conn paid doctors and Daugherty to rubber-stamp disability claims, using phony medical evidence.

Years passed. Conn was not criminally charged, and he remained in good standing with the Kentucky Bar Association. Donna Dye says she and her husband were unaware of any improprieties — the Social Security Administration has acknowledged there’s no evidence Conn’s clients were involved in the scheme. The Dyes took him their records, went to the appointments he arranged and trusted he took care of the rest.

But in May 2015, 11 months before Conn was formally accused of any crime, the Social Security Administration contacted his clients. The letters said their lawyer was suspected of having colluded with a judge and their doctors to file claims using fraudulent medical evidence. It told them their benefits were suspended, and gave them 10 days to collect their medical records from years before and prove once again they had been disabled.

Local attorney Ned Pillersdorf’s phone started ringing. He heard a hundred letters were sent out and panicked. Then he heard it was several hundred, then 900. Before the scope of the chaos settled into focus, a colleague made an ominous prediction.

“There will be suicides,” he said.

Within weeks, three people took their own lives, including Melissa Jude, on disability for a decade for anxiety and depression. She was on her way to Pillersdorf’s office when she pulled over to the side of the road and shot herself in the head.

The death toll startled Republican Congressman Hal Rogers, whose district includes the hardest-hit counties of eastern Kentucky. He convinced the Social Security Administration to allow Conn’s clients to keep their checks as they struggled in a series of hearings to prove they deserved them all along. The Appalachian Research and Defense Fund, a legal aid organization in eastern Kentucky, grew so worried they recruited the largest network of volunteer attorneys since the aftermath of Hurricane Katrina.

Now led by Pillersdorf, the band of 150 lawyers — some of the best disability attorneys in the nation — has become a sort grassroots suicide prevention network. “We are fighting for you,” they tell people over and over. “You are not alone against the government.”

Still, at least once a week, Pillersdorf fields a suicide threat. They plead publicly on Facebook that they want to die. They call his office. They call his home.

“Why live?” Kevin Robertson wrote him.

Robertson, a 41-year old with an anxiety disorder, a bad back and an eighth-grade education, lost his $1,035 monthly draw. He hadn’t worked in a decade and says his anxiety is so crippling he can barely leave his bedroom. He lost his house and everything in it.

“I know some people killed theirselves,” he wrote. “To be honest, Ned, I’ve had some crazy thoughts myself.”

Another man told him he’s now sleeping in his pick-up truck. A woman wrote that she and her children kept only their camping gear and went out to live in the woods.

The stress is beginning to wear on Pillersdorf now, too. His wife begged him to see a doctor. His colleagues worry he’s coming undone.

“I want this nightmare to be over,” he said, the fraying hems peeking from the leg of his trousers and the framed diplomas crooked on his office wall. “I don’t remember what life was like before this started. And I don’t know if we’re at the end or the beginning.”

___

Grocery stores in Floyd County, Kentucky, are overrun when the disability checks arrive the first week of the month. Traffic backs up on the main drag in downtown Prestonsburg, the county seat. Even the Papa John’s doubles its number of delivery drivers.

The payments prop up an economy that struggled, then collapsed in recent years along with the coal industry.

One of every six working-aged adults here gets a check, more than three times the American average.

Coburn attributes that to a broken system abused by those who don’t truly deserve it, yet grow dependent on government benefits. They should have known better than to hire a “shyster lawyer,” he said, and those who didn’t deserve benefits in the first place shouldn’t draw another dime. Government dependency, he believes, is the first step toward tyranny.

“Do I feel sorry for them? Yes,” he said. “Do they have hardships? Yes. But do they meet the qualifications for Social Security Disability? Absolutely not. Here’s what the law says: if you can do any job in the economy you don’t qualify for disability. Rules have to mean something, and life isn’t fair.”

The disability program was not designed to be welfare. It is an insurance program. Every American worker pays a premium out of their paycheck under an agreement with the government that a percentage of their salary will be paid to them if one day they become too disabled to work.

Tim Dye started working in the mines when he was 17. He thought when he hired Conn 26 years later, he was collecting what he was due.

His family grew entirely dependent on that check. His wife worked for the county government for nearly 18 years, until she was laid off in 2015. She didn’t worry too much then about losing her job. Her husband’s disability check came every month, around $2,200. It wasn’t a lot for a couple with a son still in high school and two granddaughters living with them. But it was stable and they made do, and expected life to go on the way it always had in their yellow house on the edge of a mountain.

Earlier this year, her husband went to the Social Security office for his initial re-determination hearing, thinking that his inclusion on the suspension list must have been some sort of mistake. But a vocational expert told the judge Dye’s back problems wouldn’t prevent him from working a desk job. He was denied, and the checks stopped coming seven months ago.

They wonder who would want to hire an old coal miner for a sit-down job, with nothing more than a high school diploma, a crippled back and an eight-year gap on his resume.

“In a month or two, we won’t have nothing,” he said. “We’re losing everything.”

___

The volunteer lawyers representing Conn’s former clients say the deck is stacked against them: The agency is assuming fraud without having to prove to any court that any of them committed it. The Office of the Inspector General identified applications that included Conn’s suspect medical evidence. But the report is confidential, no one has seen the evidence the agency relied on to determine why this particular pile of claims was assumed to be fraudulent.

Citing a 1994 law, the agency is forbidding Conn’s clients from using any medical evidence from the doctors alleged to have been involved in his scheme.

Pillersdorf said many of his clients were on disability for mental illness and cognitive disabilities. Now they are expected to recall the names of the other doctors they saw 10 years ago and pray they still have the records, Pillersdorf said.

They can’t go back to original files they handed over to their lawyer. Conn is alleged to have destroyed millions of pages of documents. Coburn’s investigation found that he shredded 26,000 pounds of paper when the senate started to investigate. His former employees testified he burned more in a bonfire behind his office that grew so big it smoldered for four days.

He was charged with 18 crimes, including mail fraud, wire fraud, destruction of records, money laundering, making false statements and conspiracy.

Conn’s attorneys did not respond to calls requesting an interview. He was released on bond pending his trial scheduled for next summer. His bail was secured by his $1.5 million estate in Pikeville.

Of the hundreds of his clients initially suspended, about half have won their cases. The other half, including the Dyes, were cut off. Their cases are entangled now in a series of lawsuits in federal court.

At least one judge agreed that the procedure is unfair. U.S. District Judge Amul Thapar — on President-elect Donald Trump’s short list for the U.S. Supreme Court — issued an opinion last month that found a number of Conn’s clients were afforded fewer protections than suspected terrorists and ordered the Social Security Administration to reconsider its process. But another federal judge sided with the agency. The question will now likely be settled by a federal appeals court. The agency declined to talk about the process.

In the meantime, many of those who lost are living with no income.

The Dyes couldn’t pay the water bill, so Donna Dye designed a system of hoses and barrels to collect run off from the hill that juts up behind her house, “the old-fashioned mountain way,” she says.

Then a man came to switch off the lights. He gave her enough time to get to the pawn shop, cash in her engagement ring and pay the bill.

She signed up for food stamps. But her husband is too proud to spend them. To him, disability was earned; food stamps are welfare.

She had hoped to find a job that paid almost as much as she made with the county, $12.45 an hour. She’s 49 years old, with only a GED. They live in rural Floyd County, 23 miles from the county seat, and just putting gas in their old truck to get to and from town eats up a couple hours of minimum wage work. But she gave up and put in 40 applications, from the Dollar Store to cleaning rooms at a cheap motel. She posted advertisements all over town offering babysitting or housecleaning for $10 an hour. She’s had no takers.

They raised their kids in a hollow nearby in a rickety two-bedroom house with no heat. When Tim was still working, about 10 years ago, they bought this bigger place for $85,000 and thought it meant they’d made it to the middle class. She said it was one of the happiest days of her life, and she went out and got the big dining room table she always wanted, with eight chairs so she could have the whole family over for dinners.

The mortgage got behind by three months. The bank called to collect and she panicked. She put a sign in her yard. “Open house, everything must go.” Her neighbors picked through her belongings. She sold her couch, her dishes and every television they owned. A woman offered her $20 each for five of her eight dining room chairs.

“This has been pure hell. Worry, just worry, that’s all I do,” she said and slumped into one of the three chairs she has left.

“I’m almost out of stuff to pawn.”

___

Most people — even Conn’s former clients — believe fraud is rampant in the disability system. They point to a distant relative or a man down the street, who seems healthy and able to work but still draws a check. Pillersdorf calls them “fakers,” people knowingly gaming the system, and said he hasn’t met one in his stack of Conn’s former clients yet. The reality is much more complicated.

The very definition of disability is open for debate. Mental illness is hard to measure. Pain is impossible to see.

“There is no medical condition called disability,” said David Autor, an economics professor at the Massachusetts Institute of Technology. “You can’t go to a doctor and have them say, ‘I’ve got bad news for you, son, you’ve got a disability.’ Disability is a social construct; it’s how much we want you to be suffering before you shouldn’t have to work.”

The nature of disability has evolved since its inception in the 1950s, when it was designed to support people with severe physical limitations — blindness, paralysis, heart disease. The program rapidly expanded in the 1970s and the federal government clamped down and kicked nearly a half-million people off the rolls. But it backfired: The public was incensed at the thought of suffering people cut off. Congress in 1984 responded by writing a more generous definition of disability which required that the agency consider pain, mental illness and combinations of less serious ailments in awarding disability.

The number of Americans in the program has skyrocketed since, from 1.8 million people in 1970 to more than 10 million today, only some of which can be attributed to aging baby boomers and more women in the workforce. Nationwide, 4.7 percent of Americans rely on Social Security Disability. But in some pockets, that number is far higher. Autor calls it the “disability belt,” a swath across the South and Appalachia, where levels of education are among the lowest in the nation and jobs in mining or manufacturing have disappeared.

Dan Black, an economist at University of Chicago, studied how the rate of disability shot up when the coal industry declined. He pointed to a system tied more to economics than to physical impairments. But he doesn’t believe that translates to fraud.

“I’m not sure what we mean by fraud,” he said. “Obviously it’s fraud if I have no health problems that prevent me from working. But there are big gray areas in between. If I have significant pain in my back, is that enough to keep me from working? Maybe. But maybe not. It is a very, very difficult line to draw.”

Black has a colleague who uses a wheelchair. If he were a coalminer, he would be disabled. But he has advanced degrees and works as an economist at a university. The very definition of disability is inherently tied to education and skill and the labor market.

Americans have tasked administrative law judges employed by the Social Security Administration with choosing who deserves disability and who does not.

The stakes are high. A tiny fraction of those who enter the disability program ever leave it for a job, said David Stapleton, who runs the Mathematica Center for Studying Disability Policy. The government spends an average of $300,000 in lifetime benefits for each person in the system. The disability fund is going broke. Congress routed money last year from the retirement fund into the disability fund, a move he likened to “robbing Peter to pay Paul when Peter’s already in trouble.”

But the solution, he said, is to work with people on the front end to keep them in the workforce, not kick them off after they’ve been out of the labor market for too many years to be reasonably expected to return to it.

“Just throwing them off the rolls without considering what that means for them,” he said, “seems pretty irresponsible.”

___

Donna Dye looked in the mirror not long ago and was stunned by the bags under her eyes, the frayed edges of her long curly ponytail.

Just a year ago, she would have never left the house without fixing her hair and putting on lipstick.

Somewhere along the way, she thought, she had run out of pride. She doesn’t know exactly when it happened. Maybe it was on one of the trips to the pawn shop. Or maybe when her mother gave her all she could — four piggy banks, labeled “quarters,” ”dimes,” ”nickels,” ”pennies” — and she took them.

She told herself to accept it, resign to a life of poverty, and move back to that rickety old house in the hollow with no heat because she couldn’t stand the stress of caring anymore.

She fixates now on the dents in the drywall, the peeling paint, the cracks in the concrete porch. She trained herself to hate this house she had loved so much. She will not weep when the bank comes to take it away.

(Tangled In Fraud Probe, 100s Face Lose Of Disability Checks;  Schneider, Mike Jan 07, 2017, AP)

Former Commissioner Michael Astrue said judges (Administrative Law Judges, ALJs) at SSA who award disability benefits more than 85% of the time cost taxpayers roughly $1 billion a year. (See http://online.wsj.com/article_email/SB10001424052702303812104576440514261188124-lMyQjAxMTAxMDEwMjExNDIyWj.html )That is not true. If he is referring to Social Security Disability Insured (SSDI) Benefits, the claimants have paid into a fund that insures them against disability. Those benefits do not come from the General Fund. They are not taxpayers’ money. Also, ALJs do not award $1 Billion a year in Supplemental Security Income (SSI) benefits. SSI is welfare and does come from taxpayer‘s funds.

Conversely, ALJs who do not pay legitimate benefits to claimants who qualify for benefits are not saving the taxpayers any money. Commissioner Astrue also said judges who deny benefits in 80% or more of their cases end up saving taxpayers $200 million each year. That is not true either.

Though he said that he wasn’t suggesting that was a practice he condoned, he is trying to have his cake and eat it too.

Commissioner Astrue’s testimony has not changed much, if at all, since he appeared before Congress in May 2007 and April 2008. (His statements and testimony are recorded in detail in my book, socialNsecurity, beginning at page 443. Available at www.judgelondonsteverson.com) He is still blaming the judges, asking for more money, more judges, and more time to reduce the backlog. Since 2007 the number of judges has gone from 1200 to 1500 and the backlog continues to grow. And Mr. Astrue continues to make excuses.

Mr. Astrue wants to have it both ways. “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 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 Amazon.com or www.judgelondonsteverson.com)

It is a bit surprising that Judge Zahm would be so out-spoken, considering the minimum amount of work she does and the astranomical amount of money she is paid. According to Social Security records Judge Zahm issued only 26 decisions for the 9 months between September 2010 and June 2011. At a salary of $167,000.00 per year, she earned $6,423.00 per decision. An average hearing lasts about 30 minutes; so, her hourly wage for that period was about $12,846.00. That is a nice salary for so little work.

However, Judge Zahm is only the Vice President of the AALJ. Perhaps, the President, Judge Randy Frye, sets a better example. According to Social Security records Judge Frye issued only 37 decisions for the 9 months between September 2010 and June 2011. At a salary of $167,000.00 per year, he earned $4,513.50 per decision. An average hearing lasts about 30 minutes; so, his hourly wage for that period was about $9,027.00. That is also a nice salary for so little work.

Judges Zahm and Frye are not unique. During the same period Judge Mark Anderson issued only 3 decisions; Judge JoAnn Andersen issued only 5 decisions; Judge William King held only 4 hearings and issued 1 decision. He was busy traveling between California and Hawaii to conduct the hearings.

These statistics came from an SSA report which contains raw data from SSA’s Case Processing and Management System without regard to the amount of time Administrative Law Judges devote to actual adjudication. In other words, factors which would affect the number of dispositions (e.g., management and administrative responsibilities, special assignments, part-time status, union representational duties, retirements, deaths or extended leave, etc.) have not been taken into account.

Here is what Commissioner Astrue is failing to say. The 1500 SSA ALJs earn approximately $167,000 a year each. The salaries of those ALJs is $2 billion 505 million a year. That figure does not include the about $3 billion a year which pays the salaries of the ALJs support staff and Commissioner Astrue’s salary and that of his support staff. Also 20% of the ALJs do not hold any hearings.

Some ALJs decide 200 cases per month without holding hearings. They award benefits in 100% of their cases, trying to “pay down the backlog” like the judge in Huntington, W.Va., who awarded benefits in every case he saw in the first six months of fiscal 2011.

A GS-9 lawyer could perform the same function at a fraction of the cost. A GS-9 lawyer earns about $40,000 a year. The cost to the taxpayer of 1500 such lawyers would be only $60 million a year. That is much less than the $2 and a half billion in salaries to 1500 ALJs. That is where the cuts should begin, not with benefits to claimants.

Just 4 years ago in the middle of the economic downturn there were 1200 ALJs. Today there are upwards to 1500 according to Commissioner Astrue. The backlog of cases waiting to be heard has not decreased, despite pressure from Mr. Astrue to force the ALJs to “pay down the backlog”. Yet, Mr. Astrue keeps hiring more judges at $167 thousand a year. It appears that Commissioner Astrue is trying to lower the unemployment rate by hiring more judges while President Obama is having difficulty creating jobs for mainstream America.

Commissioner Astrue can be vague in his testimony before Congress. We can be specific as to who the ALJs are and how many cases they decide each month and their reversal rates. See http://www.ssa.gov/appeals/DataSets/03_ALJ_Disposition_Data.html.

A court-by-court analysis of close to two million Social Security Administration (SSA) claims has documented extensive and hard-to-explain disparities in the way the administrative law judges (ALJs) within the agency’s separate hearing offices decide whether individuals will be granted or denied disability benefits.

(http://trac.syr.edu/tracreports/ssa/254/)

Attorneys representing hundreds of people fighting to keep their Social Security federal disability benefits worry those benefits may disappear for most of them if they do not have a lawyer.

Each year, the Social Security Administration (SSA) orders thousands of  people to attend Re-Evaluation hearings to determine whether they should continue receiving disability checks.

Many of those people are former clients of  Attorney Eric C. Conn.

In 2011 a story appeared in the Wall Street Journal concerning the high rate in which SSA Judges approved Social Security disability cases.

Allegations of fraud came under investigation by a U.S. Senate committee Sen. Tom Coburn, R-Okla., was the Chairman of The Senate Committee. The Committee’s Report found widespread fraud and a veritable “disability claim factory” allegedly  run by Attorney Eric C. Conn out of his small office in Stanville, Kentucky, a region of the country where 10 to 15 percent of the population  receives disability payments.

The report documents how Attorney Conn allegedly worked together with Social Security Administrative Law Judge David Daugherty (ALJ)  and a team of favored doctors with checkered pasts, including suspended licenses in other states, who rubber stamped approval of disability claims. In most cases, the claims had been prepared in advance with nearly identical language by staffers in Conn’s law office.

The report found that over the past six years, Attorney Conn allegedly paid five doctors almost $2 million to provide favorable disability opinions for his claimants.

In 2010, the last year for which records are available, Judge Daugherty approved 1375 disability cases prepared by Attorney Conn’s office and denied only 4 of them – an approval  rate that other administrative law judges have described as nearly  impossible.

Judge Daugherty, 78 years old, processed more cases than all but three judges in the U.S. He had a wry view of his less-generous peers. “Some of these judges act like it’s their own damn money we’re giving away,” ALJ Daugherty told a fellow Huntington SSA ALJ, Algernon Tinsley, who worked in the same office, Mr. Tinsley recalled.

The report found, “Judge Daugherty telephoned the Conn law firm each month and identified a list of Mr. Conn’s disability claimants to whom the judge planned to award benefits. Judge Daugherty also indicated, for each listed claimant, whether he needed a “physical” or “mental” opinion from a medical professional indicating the claimant was disabled.”

The report says that when Senate staffers and the Social Security Administration’s Office of the Inspector General began an investigation based on tips from whistle blowers in the Social Security Hearing Office, Attorney Conn and Judge Daugherty began communicating with disposable, pre-paid cell phones. It also alleges they contracted with a local shredding company to destroy 13 tons of documents.

Attorney Conn also allegedly destroyed all the computer hard drives in his office, a la Hillary Clinton at the State Department.

In 2011, the SSA placed Daugherty on administrative leave. He retired shortly after that.

In October 2013 a West Virginia Police Report said Judge Daugherty was found unconscious in his car in a Barboursville, WVa. church parking lot.

The report said the police found a garden hose running from the car’s exhaust into the passenger side of the vehicle.

Judge Daugherty was taken to a hospital and later released.

Conn has not been charged with a crime. He is suspected by congressional investigators of using fraudulent information to win the benefits. Attorney Conn’s legal fate remains in the hands of the Obama Justice Department.

A prevailing concern is that disability recipients who do not hire an attorney to represent them at their re-determination hearings will lose their benefits.

Unrepresented Claimants should not go through one of these complicated re-determination hearings without a lawyer. People appearing before SSA Administrative Law Judges (ALJ) can get a free lawyer on a contingent fee basis. The attorney does not get paid unless the client wins the case.  That amounts to a free lawyer.

Many disability recipients do not hire legal representation for their hearings. They stand a good chance of losing their benefits.

Even some who were represented at Re-Determination Hearings  are still anxious to hear results.

“Not knowing … that’s been the worst thing is not knowing and trying to prepare in case you do lose your benefits,” one beneficiary said.

One attorney who specializes in representing Social Security Claimants has said in recent weeks several people have told him they’ve thought about killing themselves if they lose their benefits.

The suicide chatter is way up,” the Attorney said. “It was especially bad around Christmas. Unfortunately people have got this unfortunate response that suicide is somehow a rational response to losing their benefits”, the attorney said.

Family members of two people who killed themselves in 2015 are suing the Social Security Administration, because they believe that the Social Security Administration’s decision to terminate disability benefit checks was the reason they committed suicide. The families of of John Daniel Jude and Emma Burchett are convinced that the termination of their SSA benefits played a substantial role in their deaths.

Attorneys for John Daniel Jude and Emma Burchett filed a lawsuit in U.S. District Court in Pikeville, KY.

The lawsuit alleges Burchett’s husband, Leroy Burchett, and Jude’s wife, Melissa Jude, killed themselves in June after getting notice that their benefits would be suspended.

More than 1,000 former clients of attorney Eric Conn received the same letter after Attorney Conn was accused of colluding with  Social Security Administrative Law Judge David Daugherty to rig Social Security cases.

These are desperate times for many people in America who were once considered among the Middle Class. They have seen their living standards decline and are struggling to make ends meet. Many were laid off in the last eight years and have not been able to find new jobs. They are not counted in the Unemployment Statistics because they have dropped out of the labor pool. Many are between the ages of 50 and 65 and do not yet qualify for Social Security Retirement Benefits. They have not even reached the age when they would be eligible to apply for early retirement. For many Baby Boomers that is around age 62.

A Social Security hearing is not a trial; it is a fact finding inquiry. The system is not even an adversarial system as defined by the judicial process. In an adversarial system, both sides are represented. In the present Social Security Disability Claims System the claimant can bring an attorney, but the system does not provide the government (SSA) with one. The taxpayers have no advocate on their behalf to ask questions, challenge medical evidence or review the 500 to 700 pages of materials that make up a typical case file.

The (Social Security Administration) judicial system is not run by anyone with real judicial experience. It is at the mercy of unelected bureaucrats whose only concern is how many cases each judge can churn out and how fast he or she can do it. An adversarial system with both sides represented and all evidence on the table is the best way to root out fraud and ensure that legitimate claims are paid.

(See http://www.amazon.com/socialNsecurity-Confessions-Social-Security-Judge/dp/1449569757)

An Interview of Judge D. RANDALL FRYE, President Association of Social Security Administrative Law Judges (AALJ) JAN. 19, 2014

(Above pictured is D. Randall Frye, on the right, with Marilyn Zahm)

CHARLOTTE, N.C. — (QUOTE) IT’S hard to imagine a more cynical fraud. According to an indictment unsealed last week by the Manhattan district attorney’s office, post-9/11 phobias of airplanes and skyscrapers were among the fictitious ailments described by retired New York City police officers and firefighters who, in a scheme involving as many as 1,000 people, are accused of ripping off the Social Security disability system by filing false claims.

As an administrative law judge (ALJ) responsible for hearing Social Security disability cases (SSDI), I’m more familiar than most people with the system. But everyone has a right to be outraged by the recent charges. Officials estimate that the fraud cost the federal government $400 million. If true, it is the largest theft in the history of Social Security.

According to court papers, the fraudsters claimed to be so ill that they could not leave their homes to work, but many posted photographs on Facebook of themselves on motorcycles and water scooters, fishing and playing sports. How did they expect to get away with it?

Well, here’s a little-known fact. Neither the staff members of the Social Security Administration, who review initial claims, nor judges like myself, who hear disputed cases, are allowed to look at Facebook in the context of a case. Even if something in the case file suggests a claimant is not telling the whole truth, Social Security Administration policy prevents us from looking at social media, for fear that we cannot be trusted to properly assess the information gathered there. No Facebook, no Pinterest, no Twitter, no Tumblr. None of the sources that most employers routinely use to check the credibility of potential employees are available to us.

It gets worse. When a disputed case comes before an administrative law judge, a vast majority of claimants bring an attorney. After all, the average claim, if successful, will yield a payout of some $300,000 in lifetime benefits. With so much at stake, it’s only reasonable that a person who believes that he has wrongly been denied benefits would hire a lawyer. But isn’t it equally reasonable that the taxpayers should have an attorney present to challenge a claim that might be false?

Sorry, no luck. When I conduct a hearing (which occurs with no members of the press or public present, because of privacy concerns), the claimant can bring an attorney, but the system does not provide the government (SSA) with one. The taxpayers have no advocate on their behalf to ask questions, challenge medical evidence or review the 500 to 700 pages of materials that make up a typical case file. Not only that, but because of Social Security Administration policy, I am no longer allowed to order independent psychological testing to help determine whether a claimant is telling the truth.

Social Security disability courts have millions of claimants and constitute one of the world’s largest judicial systems. But the (Social Security judicial system) system is not run by anyone with real judicial experience. Instead, we are at the mercy of unelected bureaucrats whose only concern is how many cases each judge can churn out and how fast we can do it. The Social Security Administration is currently run by an acting commissioner; President Obama should appoint a permanent leader with recognized professional experience in the field of social insurance.

The Association of Administrative Law Judges AALJ), for which I serve as president, favors modernizing disability hearings so that we can give claimants a fair hearing while also protecting taxpayers. Our courtrooms ought to look more like what you see on “Law and Order” or “The Good Wife.” Each side should have an advocate, allowing judges to narrow the facts in dispute and apply the law in a neutral manner. And judges and their staff members should be able to use social media, including Facebook.

Though it is not clear from the Manhattan district attorney’s indictment if any of the claims in question ever wound up before an ALJ, it is clear than the current antiquated system handicaps the effective review of cases and encourages brazen behavior.

The system needs to be made more trustworthy and fully transparent. The actions of a few crooks must not be allowed to threaten the disability payments of millions of people who are genuinely disabled, many of whom paid into the disability insurance fund during their working lives. An adversarial system with both sides represented and all evidence on the table is the best way to root out fraud and ensure that legitimate claims are paid.(UNQUOTE)

D. Randall Frye is an administrative law judge for the United States Social Security Administration and the President of the AALJ, Association of Administrative Law Judges.

EXTRACT from the book ( “socialNsecurity, Confessions of a Social Security Judge”, published 2010, Introduction, p. 17)

..

Social Security Disability hearings are not trials. They are more in the nature of fact finding inquiries. They are presided over by an administrative law judge (ALJ), who is trained in the law. At a hearing only one side of the case is present and represented by an attorney or a paralegal. That is the claimant’s side.

If only one side of a controversy is present for the hearing, then why does the claimant need to have a judge presiding? When the Government wants to win a case, Congress designs a system that provides it with an advantage. In Immigration Hearings, the Government is represented by an attorney. When the Government is a party to a hearing before the Supreme Court, it is represented by the Solicitor General. In any other federal judicial forum where the Government has an interest, the Attorney General will ensure that the Government is adequately represented.

In Social Security Disability hearings the Government is not represented. The Government is not even present. That is probably because the system was designed to give the claimant an advantage. The case is the claimant’s case, to win or to lose. A judge is not needed to collect the medical records and listen to testimony that is not really cross-examined. The presiding officer is forced to accept the claimant’s testimony, no matter how farfetched it may be. The only evidence available to impeach the testimony of the witnesses is the evidence that the claimant provides. This could hardly be considered cross-examination.

In a trial there are usually two sides to a controversy. Each side is required to be present but may or may not be represented. A judge acts as referee to ensure that the rules of evidence and procedure are followed. There may or may not be a jury to determine the facts.

In a Social Security hearing only one side is present; that is the claimant, and his or her representative. The case is against the Government, but the Government is not present. Neither is the Government represented. That is because the system was designed to ensure that the claimant wins. After all, he is only asking for what is rightfully his. He has a social contract with the Government. He has paid his premiums in the form of payroll taxes and he is fully insured. Instead of honoring its obligations under the contract the Government first tries to delay or deny the claim. This is just plain bad faith.

(socialNsecurity, Confessions of a Social Security Judge”, published 2010, Amazon.com, Introduction, p. 17)

 

 

Widespread fraud reported in Social Security Administration‘s Disability Program

A two-year investigation by the Senate Permanent Subcommittee on Investigations has found widespread fraud in the Social Security Administration’s (SSA) Disability Program. It appears that disability payments have skyrocketed because the SSA’s  attempt  to reduce the  back-log of disability cases has forced administrative law judges to hold hearings without reviewing the medical evidence in the case files, decide cases without holding hearings, and approve cases of claimants that are not disabled.

The fraud is so rampant, and disability cases have so proliferated in recent years, that the Social Security‘s Disability Trust Fund may run out of money in only 18 months, says Sen. Tom Coburn, R-Okla., whose office undertook the investigation.

Coburn’s report on widespread fraud, released Monday, focuses in large part on a veritable “disability claim factory” allegedly  run by Attorney Eric C. Conn out of his small office in Stanville, Kentucky, a region of the country where 10 to 15 percent of the population  receives disability payments.

(Judge David Daugherty)

The report documents how Attorney Conn allegedly worked together with Social Security Administrative Law Judge David Daugherty (ALJ)  and a team of favored doctors with checkered pasts, including suspended licenses in other states, who rubber stamped approval of disability claims. In most cases, the claims had been prepared in advance with nearly identical language by staffers in Conn’s law office.

The report found that over the past six years, Attorney Conn allegedly paid five doctors almost $2 million to provide favorable disability opinions for his claimants.

In 2010, the last year for which records are available, Judge Daugherty approved 1375 disability cases prepared by Attorney Conn’s office and denied only 4 of them – an approval  rate that other administrative law judges have described as nearly  impossible.

The average disability-benefit approval rate among all administrative judges is about 60% of cases. But there are Daugherty equivalents dotted across the country. In the first half of fiscal 2011, 27 judges awarded benefits 95% of the time, not counting those who heard just a handful of cases. More than 100 awarded benefits to 90% or more of applicants, according to agency statistics.

Judge Daugherty, 75 years old, processed more cases than all but three judges in the U.S. He had a wry view of his less-generous peers. “Some of these judges act like it’s their own damn money we’re giving away,” Mr. Daugherty told a fellow Huntington judge, Algernon Tinsley, who worked in the same office until last year, Mr. Tinsley recalled.

Judge Daugherty was a standout in a judicial system that has lost its way, say numerous current and former judges. Judges say their jobs can be arduous, protecting the sometimes divergent interests of the applicant and the taxpayer.

Some former judges and staff said one reason Judge Daugherty was allowed to continue processing so many cases was because he single-handedly helped the office hit its monthly goals. Staff members can win bonuses and promotions if these goals are surpassed as part of performance reviews.

Critics blame the Social Security Administration, which oversees the disability program, charging that it is more interested in clearing a giant backlog than ensuring deserving candidates get benefits. Under pressure to meet monthly goals, some judges decide cases without a hearing. Some rely on medical testimony provided by the claimant’s attorney.

The report found, “Judge Daugherty telephoned the Conn law firm each month and identified a list of Mr. Conn’s disability claimants to whom the judge planned to award benefits. Judge Daugherty also indicated, for each listed claimant, whether he needed a “physical” or “mental” opinion from a medical professional indicating the claimant was disabled.”

Coburn’s report found that, “over a four-year period from 2006 to 2010, the Social Security Administration paid Mr. Conn over $4.5 million in attorney fees.” And that, “Mr. Conn was the third highest paid disability law firm in the country due to its receipt of over $3.9 million in attorney fees from the Social Security Administration.”

The report says that when Senate staffers and the Social Security Administration’s Office of the Inspector General began an investigation based on tips from whistle blowers, Attorney Conn and Judge Daugherty began communicating with disposable, pre-paid cell phones. It also alleges they contracted with a local shredding company to destroy 13 tons of documents. Attorney Conn also allegedly destroyed all the computer hard drives in his office.

In 2011, the SSA placed Daugherty on administrative leave. He retired shortly after that.

Attorney Conn’s legal fate is now in the hands of the Justice Department.

The alleged  fraud highlights an endemic problem in Social Security disability benefit awards. The Coburn report says a random examination of 300 case files by Congressional staff found more than a quarter of  the case files “failed to properly address insufficient, contradictory, or incomplete evidence,” suggesting a high rate of fraud or abuse.

Disability payments have skyrocketed across the U.S. in recent years. At the end of August 2013, more than 14 million Americans were receiving disability benefits The Social Security Administration has blamed aging baby boomers and the lingering effects of the recession as two causes, but another reason disability payments have skyrocketed appears to be  the SSA’s  attempt  to reduce the  back-log of disability cases has forced judges to hold hearings without reviewing the medical evidence in the case file, decide cases without holding hearings, and approve cases of claimants that are not disabled.

That, in turn , has led to  less scrutiny of individual case files, which can be hundreds of pages long.

Social Security Administration officials acknowledge they are trying to clear a backlog of 730,000 cases. But they say they remain focused on ensuring taxpayer money isn’t wasted. “We have an obligation to the people in need to provide them their benefits if they qualify, but we also have an obligation to the taxpayer not to give benefits to people who don’t qualify,” said the former SSA Commissioner Michael Astrue.

Doug McKelway

By Doug McKelway

LEXINGTON, Ky. (WKYT) An eastern Kentucky attorney at the center of a national disability fraud investigation is breaking his silence. Floyd County attorney Eric Conn says “the truth will be forthcoming” and for others not to be so quick to judge.

A congressional report accuses Conn of scheming with retired administrative law Judge David B. Daugherty to approve more than 1,800 disability cases from 2006 to 2010.

“I have practiced Social Security disability law for twenty years. I have advertised extensively and represented every claimant to the best of my ability,” wrote Conn in a statement sent to WKYT. “When changes in the law occurred, I studied those changes in an effort to better represent the people who put their faith in me. I have served my clients with honor and dignity.”

Before a senate hearing on Monday, October 7, 2013 Conn refused to answer questions, a former worker claimed he called doctors responsible for signing off on the reports “whore doctors” because they didn’t question the information.

Allegations in a more than 160-page report from a U.S. Senate committee include that Conn “used his law practice to exploit key vulnerabilities in a critical federal safety net program and became wealthy in the process, “inappropriate collusion,” and the “collaborated on a scheme that enabled the judge to approve, in assembly-line fashion, hundreds of clients for disability benefits using manufactured medical evidence.”

Attorney Conn – said to be the third highest paid disability lawyer in the country – stood before a senate hearing Monday, October 7, where four witnesses testified against him. He’s accused of perpetrating massive fraud against the Social Security Administration (SSA).

Daugherty is said to have awarded an unusually high number of benefits totaling $ 2.5-billion while Conn would seek out doctors with suspicious credentials.

“He called them whore doctors because you could get them to do what you want and they were cheaper,” said Melina Hicks who worked for Conn.

The report claims these doctors would sign a claimant’s form — paving the way for Judge David Daugherty to award benefits.

One in three of the cases reviewed revealed identical paperwork.

During this time, Conn received $4.5 million in lawyers fees paid by SSA.

Jennifer Griffith and her co-worker Sarah Carver also testified Monday. They processed disability claims in Huntington, West Virginia.

In 2011, they filed a federal lawsuit against Conn and Daugherty under the false claims act which allows whistle blowers to get a portion of money recovered in fraud cases.

“With Judge Dougherty and Eric Conn, what I seen was 100 percent// if you look at that statistic alone, what’s the likelihood that every claimant who walks into your office is disabled,” said Carver who is a senior case technician for the SSA.

In a “60 Minutes” broadcast on Sunday, October 6, CBS News tracked down Conn.

When reporter Steve Kroft asked Conn to talk about his relationship with the former judge and his incredible success in disability court, Conn didn’t elaborate.

“Boy, that’s tempting. Oh, I would love to comment on some of that. But not – I’m really sorry, I don’t think I should right now,” Conn told CBS News.

At Monday’s hearing, he remained even more restrained.

I respectfully assert my constitutional right not to testify here today, sir,” Attorney Conn told committee members.

Judge Daugherty left the hearing before he was called to testify.

More than 11-million Americans receive disability insurance. That’s up 20 percent in the last six years.

Sen. Tom Coburn who spear-headed the investigation says that this case is just one example of widespread abuse.

“Some in congress refuse to acknowledge that the disability programs are broken and in dire need of significant oversight. People who are truly disabled will pay the price of our dithering,” said Sen. Coburn.

Nov. 02, 2013 

HUNTINGTON — An investigation into the Huntington Office of Disability and Adjudication Review was launched after the publication of a Wall Street Journal article in 2011 outlining the relationship between disability lawyer Eric C. Conn and Administrative Law Judge(ALJ) David Daugherty.

Conn ordered a massive destruction of files at his office, according to a report from the Committee on Homeland Security and Governmental Affairs and testimony at a Congressional hearing last month.

ALJ Daugherty, then 75 years old, called Conn’s firm multiple times in the days after the article appeared, but Conn refused to talk to the judge on his law firm’s phone lines, the Congressional report found.

The report states the judge left a message on Conn’s home phone that said:

“OK. There are those of us who know the D.A. There are those of us who know the circuit judge. There are those of us who have an inside track and hear some things. We need to talk. If you don’t want to, it’s your loss. You need to contact me … You need to do it. There are things you need to know. Good-bye.”

After that, the report alleges, ALJ Daugherty and Conn communicated through the use of disposable prepaid cell phones so the calls couldn’t be tracked.

ALJ Daugherty was placed on administrative leave pending investigation and retired in 2011. Judge Charlie Andrus also stepped down as chief justice of the Huntington office, though he continued to serve as a judge until being placed on leave pending an investigation and retiring this year.

ALJ Debra Bice, chief administrative law judge (Chief ALJ) for the entire Office of Disability and Adjudication Review under the Social Security Administration (SSA/ODAR), told a colleague that when she questioned Andrus on ALJ Daugherty, “he couldn’t give an honest assessment of what was going on.”

While Andrus testified before a Senate committee investigating Social Security fraud earlier this month, Conn exercised his 5th Amendment right not to testify on evidence that might incriminate himself.

Despite receiving a federal subpoena, ALJ Daugherty did not show up for the hearing.

Huntington office workers Sarah Carver and Jennifer Griffith gave detailed testimony on the dysfunction of their workplace, and two of Eric Conn’s former employees also testified.

“Those women, the ones who spoke out, they are extremely brave and deserve a lot of credit,” said ALJ Daniel Kemper, a former judge and colleague of ALJ Daugherty in the Huntington office.

Shortly after the Congressional hearings, Barboursville Police, responding to a call of what the department called a possible suicide attempt, found ALJ Daugherty passed out in a car with a garden hose duct-taped to the exhaust pipe and running into the vehicle. An empty bottle of liquor and an empty pill bottle were also found, according to police.

ALJ Daugherty was revived and spent an unknown number of days at an area hospital before being released.

Just how Huntington Administrative Law Judge David “D.B.” Daugherty managed to be one of the most productive Social Security Administration judges in the country in the later years of his career was something of a mystery to his co-workers and fellow judges. ALJ Daugherty, who became an administrative law judge in 1990, was hardly ever in his office and rarely conducted hearings, according to a report issued by the U.S. Senate Committee on Homeland Security and Governmental Affairs last month after it looked into possible abuses in the Huntington Social Security office.

The report and recent Congressional testimony allege ALJ Daugherty abused an initiative by the Social Security Administration urging judges to decide between 500 to 700 cases per year to clear some of the system’s backlog.

Daugherty well exceeded those marks, moving thousands of disability claims per year, almost all of which he approved by simply looking at a file and making a decision while rarely conducting hearings. When those hearings were conducted, it was at a break-neck pace.

When a fellow judge expressed concern over moving cases quickly, Judge Daugherty told him “You’re just going to have to learn what corners to cut,” according to the report.

The document indicates Judge Daugherty engaged in this behavior for years even before the 2007 initiative, and perhaps made himself indispensable because he exceeded numeric goals and helped put the Huntington Office of Disability and Adjudication Review among the most productive offices in the country.

But the volume of cases didn’t match what colleagues observed of the judge’s work ethic.

The report states one administrative law judge in an email called Daugherty “intellectually lazy,” and that was “probably his most obvious trait.”

Another colleague said Daugherty was “A spoiled little boy who became a judge” who “sought the easiest way out” in his work.

The 266-page congressional investigative report, Congressional testimony and media reports allege Daugherty worked with Kentucky disability attorney Eric C. Conn to abuse the Social Security Administration by awarding unearned disability benefits to so many clients that Conn became the third-highest-earning disability attorney in the United States at one point.

The report also reveals that Judge Daugherty approved benefits in thousands of other cases that had no connection to Conn.

Decisions made by Daugherty from 2005 through 2011 to award disability benefits to claimants cost Social Security more than $2.5 billion, according to the report. His 99.7 approval rating over a two-year monitored period was well above the national average of 60 percent.

In 2010, Judge Daugherty was the third-most productive ALJ judge out of 1,500 judges nationwide, deciding 1,411 cases. Of those, 530, or roughly 37 percent, were claimants represented by Conn. Daugherty awarded benefits in 1,410 of the cases. He denied benefits only once.

The report states it was a running joke in the Huntington Office of Disability and Adjudication Review that if someone was looking for Judge Daugherty, “you should not look in his office.”

Various fellow judges and even some office personnel brought it to the attention of management numerous times that Judge Daugherty would sign in, disappear for the day, then return and sign out as if he had worked eight hours. Sometimes he even gave himself extra hours worked. The judges do not receive extra pay for overtime, but can earn extra leave.

The report states that Daugherty’s behavior when it came to time and attendance was “a constant source of tension” in the Huntington office.

One of Daugherty’s critics in that regard was fellow judge ALJ Daniel Kemper.

“It was extremely frustrating,” the now-retired Kemper said in an interview with The Herald-Dispatch recently. “It’s one of the reasons that I left.”

Kemper and Daugherty were sworn in together in 1990, and assigned to the Huntington office. Kemper said he spent three weeks in training with Daugherty, who had previously been a circuit judge in Cabell County from 1977 through 1984.

Kemper and other justices issued complaints to Huntington Office Chief Justice (HOCALJ) Charlie Andrus multiple times over a period of years regarding the attendance and sign-in issues, but Daugherty was never disciplined.

The report states that Andrus tried on several occasions to kick the complaints up to his superiors, who told the justice it was his responsibility to manage such an issue, with one official saying, “I think Judge Andrus wants someone else to do his job.”

Kemper contended in the congressional report that Daugherty was never disciplined because he moved a high volume of cases.

Former fellow judge William Gitlow wrote to a colleague: “We have Judge Daugherty here who scans the master docket each month, pays 90+% of the time and gets out 80 to 100 cases a month. So we make our numbers each month. Without him we would not. Ever.”

Documents also show that in the case of another Huntington judge who only decided about 20 cases per month, HOCALJ Andrus moved quickly to conduct a thorough investigation of alleged time card abuse.

After a Wall Street Journal article about Daugherty’s relationship with Conn was published in May 2011, Kemper, who retired in 2007, said he was floored by statements Daugherty made to local media.

Daugherty said in those interviews that he moved a lot of cases because he loved his job and applied himself to the task of relieving a backlog of cases.

“He was claiming he got all these cases because he was such a hard worker,” Kemper said. “… His contention that he worked so hard could be refuted just by his time and attendance records.”

Kemper said he had no idea where Daugherty went every day.

” … there was nothing I had seen,” Kemper said. “I didn’t go so far as to make an individual effort to follow him around.”

Enter Eric Conn

The committee report indicates that Daugherty didn’t work hard, but fast.

He decided most of his cases “on the record,” meaning he didn’t conduct a hearing with the claimant, but awarded benefits just by looking at the case file.

In relation to Conn, since at least 2006, Daugherty would call the attorney’s office and read off a list of names and Social Security numbers of Conn’s clients who were on the judge’s docket, referred to as the “DB list,” and tell Conn or his office employees what type of medical evidence he needed to approve the case, investigators found.

Conn would then take disability forms that were already filled out to doctors to sign. Conn allegedly paid local physicians he referred to as “whore doctors” anywhere from $300 to $650 per form, according to Congressional testimony and the committee report.

Daugherty would then write favorable decisions for the client, using variations on the same language in nearly every case, the report states. It also said Daugherty would have Conn change the onset date of a condition so that records of previous denials wouldn’t factor in because the judge would be supposedly looking at a new medical diagnosis.

Many of those cases were moved onto Daugherty’s docket by the judge himself, according to the report and testimony. Andrus was bombarded by complaints from other judges and docket clerks that Daugherty was taking cases that hadn’t been assigned yet, or, in some cases, had already been assigned to other judges.

Andrus would promise to discuss the issue with Daugherty, but the judge was never disciplined, according to the report.

Daugherty was questioned about his relationship with Conn as early as 2002, but deflected any criticism back on Andrus, alleging the chief judge had an inappropriate social relationship with the attorney.

Andrus admitted he had met once with Conn for a meal, and had gone to a movie with the attorney. He also said Conn offered him all-expenses-paid trips to Brazil and Russia, which Andrus said he flatly turned down due to conflict-of-interest issues.

At times, Daugherty made some rather striking allegations about his superior.

In replying to questions from a higher judge about his social relationship with Conn, Andrus said “This is exactly what I was talking about when dealing with Judge Daugherty. At least this time he did not accuse me of doing cocaine in my office.”

Daugherty’s hearings

When judge Daugherty did conduct hearings, they were done in assembly-line fashion, according to his fellow judges.

Daugherty would review Conn’s cases in the Huntington office’s Prestonsburg, Ky., satellite office, which was close to Conn’s legal practice.

“I would be with (Daugherty) in Prestonsburg, and you would see Eric Conn bring in these scores of people at one time,” Kemper said. “(Daugherty) would finish 20 cases in the time it took me to do two or three.”

According to the report, Daugherty would conduct hearings in 15-minute increments, while a single hearing for another judge would take 45 minutes to an hour.

But in most of the cases involving Conn’s clients, Daugherty opted for making “on the record” decisions based on case files and negating the need for hearings.

According to the congressional report, Daugherty conducted 80 hearings for 481 of Conn’s clients he approved for benefits in 2006. Those hearings were conducted over a span of four days.

In 2007, Daugherty saw only four of 509 clients he handled for Conn, with all of the hearings conducted in one day. He didn’t conduct hearings for any of Conn’s 429 clients he approved for benefits in 2008. In 2009 and 2010, he saw a total of five of Conn’s 981 clients who were granted benefits. In 2011, before his suspension, Daugherty saw 18 of 366 clients he approved for Conn, all in one day.

In one instance in 2002, Daugherty canceled a Prestonsburg docket of 30 cases and granted all the claimants benefits using the on-the-record method of case review. However, several court employees needed for the hearings had already been scheduled and paid to be at the Prestonsburg office.

That prompted Andrus to send out a memo to the entire Huntington office asking all cancelations be cleared through him. Regional Chief Justice at the time, Judge Frank Cristaudo, who operated out of the Philadelphia office, wrote a memo requesting that Daugherty be officially reprimanded.

“To state that 30 hearings were canceled and 30 on-the-record decisions issued to help the agency meet performance goals suggests possible impropriety and flawed decisions,” Cristaudo wrote.

Cristaudo had drafted a reprimand and agency leaders met in December 2002 to decide if Daugherty should be disciplined. According to the report, the letter was never sent due to agency concerns regarding judicial independence.

That phrase — “judicial independence” — was one that Andrus would use time and again while being grilled by a U.S. Senate panel last month on why Daugherty was never disciplined.

According to the report, Andrus did note that Conn would frequently cancel hearings if the case wasn’t on Daugherty’s docket.

He said he confronted Conn directly about this, and Conn remarked “Well, it was good while it lasted.”

According to the report, Daugherty continued to move Conn’s cases to his docket until the Wall Street Journal article was published. That’s when Andrus put a strict lockdown on moving cases and even put a stop to a custom schedule the chief judge had designed that made sure Conn’s cases were heard before any others.

Daugherty did not attend a Congressional hearing on SSA fraud despite a subpoena from the federal government.

Daugherty said he explained his absence in an email through his attorney to the committee, but did not reveal its contents to The Herald-Dispatch.

(Fields, Ben; West-Va Hearld-Dispatch)

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.

Read more here:

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Toxic Leadership and Scorched Earth, Colonel Annicelli’s Story

                                                                                                    

                                                                                                    ( Colonel Lance Annicelli, USAF)

This is the Story of Lieutenant Colonel Lance Annicelli, United States Air Force. It is told in the first person in his own words. No one could tell his story better. What comes across in his telling of this unbelievable nightmare is his decency, compassion, and plain speaking.

This is also a shocking story. It is frank and honest but with an under tone of anger. It cuts against the grain; it strains credulity.  It is one of many similar stories being told concerning the purge of the American military senior officer corps during the period between 2008 and 2016.

Colonel Annicelli was the embodiment of the American Dream. He was a success story. He had risen to dazzling heights. His life story was a record of achievement. His curriculum vitae was threatening to some. This Top Gun pilot was flying into a strong headwind.

Many distinguished senior officers were purged from all branches of the American military services during the  period 2008 to 2016.

The Story of Colonel Lance Annicelli is a window into an unhinged system careening toward irredeemable corruption.

(Available from Amazon.com in April 2017)

                                                                                                

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And Then He Opened The Wrong Door

 

                                                                                                                   

      Once a marine, always a marine. A proud saying that bears repeating.

Once a retired officer, always an officer. Retired officers are only receiving lower compensation. They are still on the payroll. They can be brought back to active duty for disciplinary action. A retired officer can be punished by court-martial.

Former Cadet Alexander Arthur Stevens, U S Coast Guard Academy, was found dead not wearing any clothing on January 4, 2017 in the forested mountains of western Maryland shortly after a female companion walked out of the woods, suffering from hypothermia, authorities said. His naked body showed signs of trauma, according to police.

Stevens is a former U.S. Coast Guard Academy cadet who was booted from the academy in 2014 following an alleged sexual-assault investigation.

(See http://cgachasehall.blogspot.com/2014/04/a-weak-case-for-court-martial.html)
Following the disciplinary action by the Superintendent at the Academy, Alexander Stevens went home to Frostburg and enrolled at Frostburg State University, university spokeswoman Elizabeth Medcalf said. He attended last fall, majoring in engineering, but had not enrolled for the spring semester, she said.

Stevens and a female companion were last seen together around 5 p.m. January 3 near a Savage River State Forest trail-head near the rural community of Barton, about 140 west of Baltimore, Maryland Natural Resources Police spokeswoman Candy Thomson said. A search was launched at about 3 a.m. January 4 in response to a 911 call reporting them missing.

The female walked out of the woods to a house shortly before 9 a.m., and emergency responders were called. A Maryland State Police helicopter crew spotted Stevens’ body shortly thereafter on private property adjacent to the 54,000-acre state forest.

His body showed signs of undisclosed trauma. Cadet Stevens was found near Pine Swamp Road, which is crossed by the Big Savage Mountain hiking trail. The trail there follows a logging road through steep, rocky terrain, according to the website of Garrett Trails, a nonprofit group that promotes hiking in Garrett County.

The night was relatively mild, with overnight lows in nearby Frostburg and Cumberland never dropping below 40 F degrees. Live traffic cameras operated by the Maryland Department of Transportation show little snow cover remaining along Interstate 68 after a storm 4 days prior covered the region with up to 6 inches.

The investigation was conducted by the Maryland State Police Criminal Enforcement Division and the State Police Homicide Unit. Assistance was provided by the Allegany County Combined Criminal Investigations Unit (C3I) and Natural Resources Police.   Limited information has been provided by state police investigators.

The relationship between Stevens and the female has been reported as “boyfriend, girlfriend.” The woman, believed to be in her 20s, reportedly cooperated with investigators throughout the investigation. In a 911 call, she reportedly told emergency workers that Cadet Stevens had fallen off a cliff.

According to Elena Russo, state police spokesman at Pikesville, “We are still waiting for toxicology reports”.

 

                                                                                                                    

                                                                                                   (Cadet Alexander Stevens, above right)

 

Cadet Alexander Stevens was a cadet at the U.S. Coast Guard Academy (USCGA). He was a native of the Frostburg, MD area. In high school he was active in plays and musicals, having a fine baritone voice. He was a member of the Concert choir. He was the Pirate King in the Pirates of Penzance. He played Sky Masterson in Guys and Dolls. He was a member of Concert band, Jazz Orchestra, and Marching band all four years of high school. He was a natural for the Coast Guard Academy Glee Club.

        He participated in football, basketball, cross-country and track & field. 

        He attended the Cambridge University in England Summer Program for high school students.

        The American Legion selected him as their representative to Maryland Boys State.

        He was a Boy Scout and Senior Patrol Leader, achieving the rank of Eagle Scout.

        He was a World Traveler, traveling widely through Western Europe and Korea. 

        He loved the great outdoors, and was an avid camper.

        He loved to stargaze, rock climb, and hike.

        He had a great sense of humor and he loved animals. 

        He was an all around nice guy. He was meek and lowly.

        He was the main speaker at his high school graduation, giving the Senior Address.

 

       He was accused at the Coast Guard Academy of breaking into the room of a female cadet of lower rank in Chase Hall and sexually abusing her.

The Coast Guard prosecutor, Lt. Tyler McGill, alleged that Cadet Stevens  was on a mission for sexual gratification that September night. The room Stevens entered was about 300 feet from his girlfriend’s room.

“Cadet Stevens did not walk into the room right next door,” McGill said.

Lt. John Cole, Cadet Stevens’ Assigned Military Defense Counsel, said the government didn’t prove sexual intent. He claimed Stevens was drunk at the time and made a mental mistake.

Just because he accidentally touched the wrong cadet’s leg doesn’t mean he should go to court martial,” Cole said.

Cole argued that Stevens should face administrative punishment, which can include expulsion. Administrative punishment is not criminal in nature. Non-judicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) is the lowest form of criminal proceeding available to the military. Above NJP there are three levels of courts-martial. They are a Summary, a Special and a General Court-matial. They differ in the maximum amount of punishment they can award to a convicted member. A court martial is a Federal Criminal Trial and can lead to prison time if the person is convicted.

The Article 32 pretrial investigation is similar to a civilian grand jury. It is used to determine whether there is enough evidence to refer the case to a court-martial.

A hearing in the form of an Article 32 Investigation was held  Wednesday April 2nd at the Coast Guard Academy. The Article 32 Investigating Officer (IO) has not yet made a recommendation. The IO could recommend that the case be dismissed, dealt with administratively or referred for trial by court-martial.

Usually the accused usually does not testify at an Article 32 Hearing.

Most smart Defense Counsels do not let their clients testify at an Article 32 Hearing. They use that opportunity to discover the Government’s case. They get a chance to see how much evidence the Government has and how strong it is.

Cadet Stevens, who was accused of abusive sexual contact, housebreaking and unlawful entry, did not testify.

The Testimony was weak.

The female complaining witness testified that a man entered her room in the middle of the night, touched her on her thigh and moved his hand up her leg before she screamed and kicked him.

“I remember someone fumbling with my blanket that was on top of me and touching my leg,” she said, describing skin-to-skin contact and the swirling motion of a hand moving up her leg. “I kicked my legs and I screamed.”

The man either fell or jumped off her bed and fled. She says she chased him and located a friend.

“I kept telling him (the friend) that’s not right,” she said, noting that she was shaking and crying.

The cadet said she found it hard to sleep and concentrate after the encounter, and her grades suffered.

“I think he should be kicked out of the Coast Guard. I think he should be a registered sex offender, and I think he should go to jail,” she said.

Cadet Stevens’ explanation Was credible and exculpatory.

Stevens said in an interview that he went into the fellow cadet’s room and touched her with his hand, said Eric Gempp, a special agent with the Coast Guard Investigative Service (CGIS). Stevens said he was startled when the cadet said, “Hey!” He quickly left the room, Stevens told investigators.

Stevens said he went into the room by mistake, believing it was his girlfriend’s room, Gempp testified.

Defense Counsel was able to get the accused’s statements into the record without him taking the witness stand.

Chief Robert Cain testified that Stevens voluntarily came to him and told him during a night of drinking he got into an argument with his girlfriend. Cain said Stevens told him after returning to his room that he decided to apologize and went to what he thought was his girlfriend’s room, tapped her on the leg and realized he was in the wrong room.

Another cadet testified that classmates often go into the wrong rooms, but said the mistake typically involves going into a room one or two doors away.

The only cadet ever court-martialed at the academy, Webster Smith, was tried in 2006 at a General Court-martial and convicted on extortion, sodomy and indecent assault charges.

(The Webster Smith Case was appealed all the way to the U. S. Supreme Court. It is fully documented in a book entitled “Conduct Unbecoming An Officer and a Lady” available on Amazon.com http://www.amazon.com/CONDUCT-UNBECOMING-Officer-Lady-Conviction/dp/1460978021 )

The Article 32 investigating officer (IO) in this case could recommend that the alleged offenses be dismissed, dealt with administratively, or referred for trial by court-martial.

Anonymous said…QUOTE:
This is not a case of sexual assault; the evidence presented by the government failed to prove anything more than the fact that there is a systemic problem of alcohol abuse and confusion over dorm room locations running rampant at the USCGA. Multiple witnesses confirmed the events of the night as purported by Cadet Stevens. Moreover, they confirmed that it is a too-frequent occurrence for over-intoxicated cadets to return to Chase Hall and accidentally walk into the wrong room. The alleged victim’s own roommate testified to that fact without reservation.

Doors have locks, the roommate also confirmed, but cadets are not permitted keys; only the XO has a master key to unlock doors. The only way a cadet could secure his/her room is when all occupants are safely inside. This is surely a contributor to issues of unspeakable theft, vandalism and abuse current and former cadets can tell.

The Article 32 Hearing was a manufactured event architected by someone with an agenda that goes beyond the unfortunate incident that occurred in the wee hours of September 15. Yes, Cadet Stevens was drunk and made a horrible mistake. But it was not assault and any reasonable person who looks at all of the evidence will quickly come to this conclusion. To reach any other decision is an overt decision to falsely accuse – and ruin – the character and integrity of the very same honor all cadets represent.

 
Admiral Stosz has issues within her ranks of leadership, character and courage; she needs to look at the culture of Chase Hall and question why cadets are abusing alcohol and questioning if the restrictive weekday rigor and lax weekend liberty — call it Feast or Famine — is modeling the lifestyle and behaviors that mold tomorrow’s Coast Guard leaders. These are far greater issues than addressing Cadet Steven’s long overdue Mast for drunkenly walking into another’s room in error.

I, for one, did not lose the irony of the drawn-out investigation culminating with a hearing that began with the start of the Coast Guard’s Sexual Prevention and Awareness Month. This is showmanship at the taxpayer’s expense, folks, and nothing more.

UNQUOTE.

Coast Guard cadet won’t be court-martialed

NEW HAVEN, Conn. (AP) 12 June 2014 — A U.S. Coast Guard Academy cadet accused of entering a classmate’s room and touching her leg will not face a court martial, the academy said Thursday.

Coast Guard Academy Superintendent, Rear Adm. Sandra Stosz, agreed with the recommendations of an Article 32 Investigating Officer that reasonable grounds did not exist to support the charge of abusive sexual contact against cadet Alexander Stevens. Rear Adm. Sandra Stosz, also agreed with a recommendation to impose nonjudicial punishment (NJP) on Cadet Stevens for unlawfully entering a cadet barracks room while drunk and touching another cadet on the leg, Coast Guard officials said.

The academy did not disclose details of the punishment, citing Stevens’ privacy rights. Nonjudicial punishment may include a reprimand, arrest in quarters for up to 30 days, pay forfeiture or expulsion from the academy.

“The Academy has remained committed to providing all needed support to the victim, ensuring a full and fair proceeding in compliance with the Uniform Code of Military Justice (UCMJ) and holding those who commit misconduct accountable for their actions,” said Capt. James McCauley, the Commandant of Cadets at the U S Coast Guard Academy, New London, CT..

In September 2013, Stevens said, he went into the fellow cadet’s room by mistake, believing it was his girlfriend’s room, an investigator testified.

He was drunk at the time and made a mental mistake, Lt. John Cole, who represented Stevens, said during the Article 32 Pre-trial investigation at the Academy in April 2014.

The female cadet classmate testified that a man entered her room in the middle of the night, touched her on her thigh and moved his hand up her leg before she screamed and kicked him. The cadet said she found it hard to sleep and concentrate after the encounter, and her grades suffered.

A Government appointed prosecutor, LT Tyler McGill, at the Article 32 Investigation argued that Stevens was on a mission for sexual gratification. The room Stevens went into was about 300 feet from his girlfriend’s room, Lt. Tyler McGill said, and noted that the classmate was lower in rank.

“Cadet Stevens did not walk into the room right next door,” McGill said.

But the government failed to prove sexual intent, Cole argued.

“Just because he accidentally touched the wrong cadet’s leg doesn’t mean he should go to court martial,” Cole said.

Stevens did not testify.

A conviction in a court martial can lead to prison time.

The only cadet ever court-martialed at the academy, Webster Smith, was tried in 2006 and convicted on extortion, sodomy and indecent assault charges.

(By John Christoffersen, AP) 

 
COMMENTS ON SOCIAL MEDIA FROM CADETS AT THE COAST GUARD ACADEMY WERE QUICK AND CONSISTENT  (and mostly anonymous)
(1)

This is not a case of sexual assault; the evidence presented by the government failed to prove anything more than the fact that there is a systemic problem of alcohol abuse and confusion over dorm room locations running rampant at the USCGA. Multiple witnesses confirmed the events of the night as purported by Cadet Stevens. Moreover, they confirmed that it is a too-frequent occurrence for over-intoxicated cadets to return to Chase Hall and accidentally walk into the wrong room. The alleged victim’s own roommate testified to that fact without reservation.

Doors have locks, the roommate also confirmed, but cadets are not permitted keys; only the XO has a master key to unlock doors. The only way a cadet could secure his/her room is when all occupants are safely inside. This is surely a contributor to issues of unspeakable theft, vandalism and abuse current and former cadets can tell.

The Article 32 Hearing was a manufactured event architected by someone with an agenda that goes beyond the unfortunate incident that occurred in the wee hours of September 15. Yes, Cadet Stevens was drunk and made a horrible mistake. But it was not assault and any reasonable person who looks at all of the evidence will quickly come to this conclusion. To reach any other decision is an overt decision to falsely accuse – and ruin – the character and integrity of the very same honor all cadets represent.

Admiral Stosz has issues within her ranks of leadership, character and courage; she needs to look at the culture of Chase Hall and question why cadets are abusing alcohol and questioning if the restrictive weekday rigor and lax weekend liberty — call it Feast or Famine — is modeling the lifestyle and behaviors that mold tomorrow’s Coast Guard leaders. These are far greater issues than addressing Cadet Steven’s long overdue Mast for drunkenly walking into another’s room in error.

I, for one, did not lose the irony of the drawn-out investigation culminating with a hearing that began with the start of the Coast Guard’s Sexual Prevention and Awareness Month. This is showmanship at the taxpayer’s expense, folks, and nothing more.

 
(2)  The woman is definitely not officer material as she won’t hold up in a war front or during a battle… thrown into the mist of a battle or fight, she would be complaining someone touch her precious body. Now if he grab some titty or fondle her #$%$ or box, then that would be not acceptable. She just made the ultimate mistake in the military and this will follow her every place she goes and NO ONE will respect her.

Signed,

Disgusted

 
(3)   So a person has to let the courts take care of something that should have been dealt with on the spot. I don’t think this attitude works for the decisiveness required of future officers.

Signed,

Concerned Citizen

 
(4)  In mixed dorms, with the history of abuse in the academy, don’t these people have locks on their doors? Is it some kind of statement of female independence not to lock door at least at night?

This situation is a bit fuzzy and in a world now where any even anonymous allegation is given major notice, how much truth is there here. On either side.

Signed,

johnb

 
(5)  Oh please, grow up. What is she, ten? A REAL woman would just demand he takes his hand off of her and if he doesn’t comply, slap him. It’s worked for centuries. And what evidence is there? She could be making up the whole thing. I’m a bit tired of people making accusations for which there is no proof. It’s too easy.

Signed,

Mike

 
(6)  No locks on the doors??

Signed,

Peter

 
(7)  Girls, guys–they are all equal now. If a guy had been in this girl’s place, what would he have done? He’d kick the #$%$ out of the offender; so this gal should have done the same thing.

Signed,

Jonathan

 
(8)  I miss the good old days, where she’d have a guy friend beat some sense into this guy and the issue would be resolved. Now everything has to be a sensational court drama. The new USSA – any violation and off to the goolag. We have more people incarcerated in this country than any other civilized country in the world. Won’t be long before we start throwing people in jail for not having health insurance(IRS aka SS is involved).

Signed,

Scooter

 
(9)  She is just trying to get extra treatment in a very difficult place for any one to gain the upper hand. Wow, I guess no more parties, Mardi Gras, ridding NY subway, buses at rush hour as I’m bound to bump into someone and sometimes it’s their #$%$ or bellies or legs and sometimes oversized boobs. Lets get unserious on this type of accidental touching. Shocked it made the news unless someone is looking to bash the Academy… jealous are you!

Signed,

Disgusted
 
(10)  Having graduated from that Academy myself, I’m almost embarrased that such a trivial event as a guy getting drunk, thinking he’s in his girlfriend’s room, putting a hand on her leg, being yelled at, quickly removing his hand, and quickly leaving the room is a call for JAIL time? Court martial? Sexual Predator list? C’mon, there was no intent here. No “sexual” contact. No “housebreaking” (as I’m sure the door was not locked.) Does this guy have a record of ever doing anything like that before? Does this girl have a record of being overly sensitive about herself? When I was there this is the kind of thing that the Corps would handle without ever involving the authorities. Now I guess it’s like everywhere else.

Signed,

HansenJG

 
(11)  HansenJG, I am inclined to agree with you but we don’t know all of the facts. I did note that she said her grades suffered after the incident. Was she about to be dismissed from the Academy for grades and then brought this up as a way to continue her education on the taxpayer’s dime?

Signed,

Troy

 
(12)  The woman is definitely not officer material as she won’t hold up in a war front or during a battle… thrown into the mist of a battle or fight, she would be complaining someone touch her precious body. Now if he grab some titty or fondle her #$%$ or box, then that would be not acceptable. She just made the ultimate mistake in the military and this will follow her every place she goes and NO ONE will respect her.
 
(13)  I’ll bet you would change your tune if it were a gay soldier who came into your room and touched YOUR leg… I mean really, how do you expect to hold up in battle if you can’t handle a man coming into your room and touching your leg in a sexual fashion.

Signed,

Star Spangled

 
(14)  His story adds up…hers sounds more emotionally driven. Was it traumatic? I’m sure. Was he at fault for being drunk and disorderly? Of course. Does a brush of the hand on a thigh constitute serious sexual assault? No…a mistake he needs to rectify, but shes not a much a victim as she thinks she is. If there was no malicious intent and no real harm done, then where is the major crime?

Signed,

Doug

 
(15)  She sounds like she is extremely sensitive and is not good with startling situations considering she is not sleeping and her grades are suffering. The military or any high stress and or potentially dangerous job is really not the place for her. I do see a problem with the guy not sticking around, apologizing and explaining the error at the time it happened.

Signed,

M

 
 
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Social Security Administration Paid Almost $2 Million In Benefits To Dead Federal Workers

                                                                                                

October 11, 2016 – The Social Security Administration (SSA) paid deceased federal employees $1.7 million in benefits for an average of seven years after they died.

According to an audit by the Inspector General (IG), the error occurred due to the SSA’s failure to crosscheck beneficiaries’ death files with the Office of Personnel Management (OPM). As a result, the deaths were not logged in SSA records. The office manages the administration of retirement benefits and other services for government workers.

“The erroneous benefit payments account for a handful of cases out of the millions the SSA processes each year,” said David W. Magann, a prominent attorney in Tampa, Florida, whose firm specializes in Social Security disability law. “However, this latest incident throws a spotlight on how the administration needs to change its practices when handling records to make sure such mistakes do not happen in the future.”

Investigators found the SSA made the erroneous payments of old-age, survivors and disability insurance benefits to 35 individuals. Among them, one beneficiary had died in 1991, but the Office of Personnel Management never reported the death to Social Security.

The inspector general claimed the SSA would have likely paid the deceased individuals around $258,000 in benefits over the coming year if the discovery had not been made.

Calling the $1 Million $700 Thousand Dollars an “extremely small number,” the SSA said it “represents less than one-tenth of a percent of total benefit payments.” In the administration’s official response to the audit, it promised to do better and ensure the situation is resolved by the beginning of the next fiscal year. The SSA said, “Over the years we have made, and will continue to make, enhancements to ensure our death data is accurate and to stop payments when we receive confirmed death reports.”

In one example that was cited, a Georgia woman received benefits until 2015 even though she had died in 2007. Although her son reported her death to the SSA, he was able to receive his mother’s benefits checks totaling $68,192 over seven years.

He must now repay $63,446 in penalties to the government.

Categories: socialNsecurity | 1 Comment

Video Hearings Are A Denial Of Due Process

United States Court of Appeals, Third Circuit.

GILBERT M. MARTINEZ, Appellant v. COMMISSIONER SOCIAL SECURITY

No. 16-1956

    Decided: October 6, 2016

Before: VANASKIE, SCIRICA and FUENTES, Circuit Judges OPINION *

Gilbert M. Martinez appeals from an order of the District Court affirming the Commissioner’s decision to deny Martinez’s claim for supplemental security income (SSI).

We will affirm.

Martinez applied for SSI on August 31, 2011, alleging disability starting on August 19, 2011 (AOD) resulting from arthritis, nerve damage, and acid reflux.

The agency denied the application on January 5, 2012, and Martinez requested a hearing before an Administrative Law Judge (“ALJ”). 

After a video hearing on July 23, 2013, the ALJ determined that Martinez was not disabled pursuant to § 1614(a)(3)(A) of the Social Security Act and denied the application for benefits.

(NOTE: This writer believes Video Hearings are a Denial of Due Process.

See http://cgacriticalthinkers.blogspot.com/2014/03/video-hearings-are-denial-due-process.html

In its written opinion of August 15, 2013, the ALJ found that Martinez had a severe impairment in his right hand resulting from a gunshot wound that Martinez had suffered as a child. However, considering the record as a whole, the ALJ found that Martinez did not suffer from rheumatoid arthritis or any other condition that met the criteria for listed impairments that would render him statutorily disabled. The ALJ also found further that Martinez had some use of his right hand and had compensated for the impairment to that hand through the use of his left hand.

Consequently, the ALJ found that Martinez was not disabled and that there were occupations available to him that would require only partial use of his right hand.

Martinez appealed.

The Appeals Council of the Social Security Administration (A/C) declined further review, making the ALJ’s decision the final decision of the Commissioner of Social Security.

Martinez then sought judicial review of the ALJ’s decision.

After considering a Magistrate Judge’s report and recommendation and Martinez’s objections thereto, the District Court affirmed the ALJ’s decision and entered judgment in favor of the Commissioner. This appeal followed.

We have jurisdiction pursuant to 28 U.S.C. § 1291. Our review is deferential, as it is limited to determining whether the ALJ’s decision is supported by substantial evidence. Brown v. Astrue, 649 F.3d 193, 195 (3d Cir. 2011).

Substantial evidence is “ ‘more than a mere scintilla,’ and is defined as ‘such relevant evidence as a reasonable mind might accept as adequate.’ ” Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999) (quoting Ventura v. Shalala, 55 F.3d 900, 901 (3d Cir. 1995)). If substantial evidence supports the ALJ’s findings of fact, those findings bind us even if we would have settled the factual inquiry differently. Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999).

An individual who is disabled, and otherwise eligible based on income and resources, is entitled to benefits under the Social Security Act. 42 U.S.C. § 1381a.

To establish disability, “a claimant must demonstrate [that] there is some ‘medically determinable basis for an impairment that prevents him from engaging in any ‘substantial gainful activity’ for a statutory twelve-month period.’ ” Plummer, 186 F.3d at 427 (quoting Stunkard v. Sec’y of Health & Human Servs., 841 F.2d 57, 59 (3d Cir. 1988)).

A claimant is unable to engage in any substantial gainful activity “only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.” Id. at 427-28 (quotation marks omitted).

To determine whether a claimant is disabled, the Social Security Administration considers, in sequence, using a 5-Step Evaluation Process whether the claimant: (1) is engaged in substantial gainful activity; (2) has a severe impairment; (3) has an impairment that is the same as or equivalent to an impairment listed by the Administration as presumptively precluding any gainful activity; (4) can return to past relevant work despite the impairment; and (5) is capable of performing other work in the national economy. 20 C.F.R. § 404.1520; Brewster v. Heckler, 786 F.2d 581, 583-84 (3d Cir. 1986).

As noted above, the ALJ found that Martinez had a severe impairment, but not one that precluded any gainful activity, and that other work was available to Martinez in the national economy that he could perform despite his impairment.

Martinez now argues on appeal that the ALJ: (1) failed to credit or ignored certain probative evidence; (2) failed to give sufficient weight to the opinions of Martinez’s treating physician; (3) failed to expressly consider Martinez’s testimony; (4) failed to weigh the evidence and explain how contrary evidence was rejected, and (5) failed to consider Martinez’s reports of subjective pain and specify reasons for rejecting that testimony.

The administrative record belies these contentions, and we find no fault in the District Court’s discussion of the ALJ’s decision.

We comment briefly on Martinez’s two main procedural objections that the five separate points named in Martinez’s brief on appeal comprise.

First, the evidence that Martinez says that the ALJ should have considered was not part of the administrative record. Martinez attached two documents to his brief before the District Court that purport to show a diagnosis of rheumatoid arthritis from two of his treating physicians. Martinez did not present those documents as part of his case before the ALJ, even though the ALJ invited Martinez to provide additional documentation following the hearing. Consequently, we may not consider that documentation in our evaluation of whether substantial evidence supported the ALJ’s decision. See Matthews v. Apfel, 239 F.3d 589, 593 (3d Cir. 2001). Furthermore, that documentation post-dates the ALJ’s decision, and Martinez does not explain why he did not provide it earlier. Consequently, Martinez could not have satisfied the materiality and good-cause requirements to justify a remand to the ALJ to consider that new evidence. See Szubak v. Sec’y of Health & Human Servs., 745 F.2d 831, 833 (3d Cir. 1984).

Second, although Martinez argues that the ALJ overlooked his subjective complaints, the ALJ’s written opinion in fact considered Martinez’s testimony and found it not credible to the extent that the medical evidence contradicted it. In over two full pages of discussion, the ALJ identified potential contradictions within Martinez’s testimony and medical evidence that was inconsistent with his subjective reports. That discussion was more than adequate to satisfy the ALJ’s duty to provide explicit reasons for rejecting Martinez’s subjective contentions. See Burnett v. Comm’r of Soc. Sec. Admin., 220 F.3d 112, 122 (3d Cir. 2000).

Overall, the record reflects that there is substantial evidence to support the ALJ’s determination that Martinez’s physical impairments did not match or equal the criteria for the relevant listed impairments necessary for a finding that Martinez was statutorily disabled. Although Martinez was able to present certain pieces of evidence that potentially supported his claim of disability, the ALJ identified “more than a mere scintilla” of medical and testimonial evidence to contradict Martinez’s potentially favorable evidence, and carefully explained how each piece of evidence supported the conclusion that Martinez was not statutorily disabled.

In addition, there is substantial evidence to support the ALJ’s finding that Martinez had the residual functional capacity (RFC) to perform light work subject to some limitations in light of his impairments. The ALJ cited specific items of medical evidence and points from Martinez’s testimony to show how Martinez was able to perform basic tasks (ADL) in his employment and in his daily life that were reasonably equivalent to light work that would be available to Martinez in the economy.

Consequently, we will affirm the decision of the District Court that substantial evidence supports the ALJ’s conclusion that Martinez was not disabled during the relevant time period.

FOOTNOTES

FOOTNOTE.   This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.

PER CURIAM

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Social Security Judge Erred, Failed To Credit Claimant’s Pain Allegations, Reversed, Collect Benefits

Social Security Judge Erred on Credibility. Decision Reversed.

 

Disability ClaimOct. 3, 2016 – The U.S. Court of Appeals for the Seventh Circuit granted a Wisconsin woman’s claim for disability insurance benefits, concluding that an Administrative Law Judge (ALJ) erred when making a credibility determination.

Claimant, Debora Ghiselli, applied for disability benefits under the Social Security Act. She claimed that certain health problems, including degenerative disc disease, asthma, and obesity, prevented her from working.

An Administrative Law Judge (ALJ) denied the claim.

A Judge for the U.S. District Court for the Eastern District of Wisconsin upheld the ALJ’s decision.

But Ghiselli appealed, arguing that the ALJ committed errors.

The ALJ had followed the Five-step Sequential Evaluation Process for evaluating the claim, under 20 C.F.R. section 404.1520(a)(4).

(See https://www.amazon.com/socialNsecurity-Confessions-Social-Security-Judge/dp/1449569757/ref=asap_bc?ie=UTF8)

The Fourth Step required the ALJ to consider Ghiselli’s “residual functional capacity” (RFC) and “past relevant work”(PRW).

To do this, the ALJ considered reports from several physicians. One was the doctor who treated Ghiselli after a workplace injury to her back. The Treating Doctor had recommended that Ghiselli limit daily work to four hours as a customer service manager.

Two other Consultative Doctors, state agency medical consultants, said Ghiselli had “severe pain and limited mobility” but the medical evidence did not support such extreme restrictions. Two other physicians performed imaging examinations and found only mild impairment.

The ALJ determined that a four-hour workday restriction may have made sense after an initial injury, but there was no medical basis to support the restriction years later. The judge assigned “significant weight” to the non-treating physicians’ reports.

In determining Ghiselli’s “residual functional capacity (RFC),” the ALJ noted Ghiselli’s own testimony. Ghiselli said she could still do light housework, drive her car, go grocery shopping, care for her pets, and perform other activities of daily living (ADL).

The ALJ also found that Ghiselli gave inconsistent statements that damaged her credibility. For instance, in one report, Ghiselli claimed her doctor restricted her from working at all until she was cleared to lift more than 15 pounds. But the doctor had said she could work four hours per day, as long as she lifted no more than 25 pounds.

The ALJ ultimately concluded that Ghiselli could perform a range of light work and was not functionally disabled for purposes of disability insurance. The district court affirmed.

But in Ghiselli v. Colvin, No. 14-2380 (Sept. 16, 2016), a three-judge panel for the Seventh Circuit Court of Appeals vacated the ALJ’s decision and remanded the case to the Social Security Administration (SSA).

The panel ruled that the ALJ made an improper credibility determination based on Ghiselli’s subjective accounts of the pain she was experiencing.

“His credibility determination was based in part on his conclusion that Ghiselli could successfully perform numerous life activities,” wrote Judge Diane Wood.

“But without acknowledging the differences between the demands of such activities and those of a full-time job, the ALJ was not entitled to use Ghiselli’s successful performance of life activities as a basis to determine that her claims of a disabling condition were not credible.”

The panel said the error was not harmless “as it informed several aspects of the ALJ’s findings with respect to Ghiselli’s residual functional capacity (RFC) and consequently her ability to perform past relevant work (PRW) or to adjust to other work.”

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