Social Security Cases

Video Hearings Are A Denial Of Due Process

Posted on October 11, 2016 by Judge London Steverson

GILBERT MARTINEZ v. COMMISSIONER SOCIAL SECURITY

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

Categories: Social Security Cases | Leave a comment

Decisions From Social Security Judges Often Have Frequent, Serious and Ignored Deficiencies, Appeals Court Says

Posted on June 29, 2016 by Judge London Steverson

7th Circuit judge reverses benefits denial, and chastises Social Security process.

Seventh Circuit Judge Richard Posner had harsh words for the Social Security Administration (SSA) Office of Disability Adjudication And Review (ODAR) regarding Vocational Expert (VE) Testimony: clean up your act.

The 7th Circuit Court of Appeals reversed the denial of Anne Hill’s application for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI), finding the Administrative Law Judge’s (ALJ) credibility analysis was flawed.

Ms. Hill, 56, worked for more than 13 years at a steel factory where she had to carry steel sheets weighing up to 100 pounds. The manual labor took a toll on her body and she applied for disability benefits in 2011. Her physical issues included total hip replacement, knee pain, recommended total shoulder replacement, and severe physical limitations in the use of her left side.

Her daily activities included babysitting, but she was unable to lift the child, did chores and went to church, but was unable to sit or stand for long periods of time.

The VE in her case testified that she could work at jobs classified as light and unskilled, such as dealer account investigator or a counter clerk. The VE, using his own experience to opine on how Ms Hill’s issues with her left side would impact her ability to work, testified she could still perform sedentary jobs such as a registration clerk.

https://www.amazon.com/socialNsecurity-Confessions-Social-Security-Judge/dp/1449569757?ie=UTF8&ref_=asap_bc

Using the five-step analysis for assessing disability, the ALJ concluded Hill was not disabled. The ALJ noted that Hill was not taking narcotic pain relievers, but Hill had testified that was because of her past alcohol addiction. The judge reasoned Hill exaggerated her back pain because she hadn’t been diagnosed with certain conditions, but that conclusion is not supported by any medical evidence in the record.

“We are not confident that the ALJ would have reached the same conclusion about Hill’s credibility had the ALJ not inappropriately ‘played doctor,’ ignored possible explanations for Hill’s conservative treatment, and conflated a desire to work with the ability to do so. So the ALJ’s errors are not harmless,” Judge Anne Claire Williams wrote.

Circuit Court of Appeals Judge Posner wrote a concurring opinion in which he focused on “a persistent, serious and often ignored deficiency in opinions by the Administrative Law Judges of the Social Security Administration” in denying benefits.

He noted the issues regarding VE testimony concerning the number and types of jobs that an applicant deemed not to be totally disabled could perform. It appears the VEs simply divide census data estimates on the number of jobs in a broad category that includes the narrow category of jobs that the applicant can perform, by the total number of narrow categories in the broad category.

“The assumption is thus that every narrow category has the same number of jobs as every other narrow category within the broad category – a preposterous assumption,” Posner wrote.

“In short, the vocational expert’s testimony was worthless – and this apart from the apparent arbitrariness of his numerology,” he continued. “It is time the Social Security Disability Office cleaned up its act.”

The case is Anne R. Hill v. Carolyn W. Colvin, Acting Commissioner of Social Security, 15-1230.

(By Jennifer Nelson)

Circuit Court of Appeals Judge Posner in his concurring opinion made the point that he has noticed “a persistent, serious and often ignored deficiency in opinions by the Administrative Law Judges of the Social Security Administration” in denying benefits.

He stated that as fact. He did not offer or solicit any possible explanation for that fact. I submit that there is a probable easily explained reason for that fact. It is systemic. It could be remedied but at considerable expense. The SSA could hire only lawyers from the best law schools and pay them three times what the para-legal writers are receiving today. If only lawyers were writing SSA disability affirmations and the case load were reduced to a reasonable level, there would be a noticeable improvement in the quality of the denial decisions.

The hard truth is that SSA ALJs do not write their own decisions. They hold hearings and decide whether to pay or not to pay the claim. The decision is written by a staff writer who may not be a lawyer. The writers are often simply para-legal low level Government wage grade employees. Many para-legals have only completed a six month course at a junior college and received a para-legal certificate. Then through nepotism, favoritism, or affirmative action and luck they may find themselves at a Federal Agency writing Federal Court Decisions.

These writers do not have law degrees, but they are familiar with the SSA Regulations that pertain to disability evaluation. They simply choose which of the standard paragraphs in the SSA computer responds to each of the claimant’s allegations of symptoms and puts them into the decision. All of the parts of the decision are already written and are stored in the SSA computer.

Categories: Social Security Cases | 2 Comments

SSA Claimant Is Disabled and Cannot Work If There Are No Jobs Available

Posted on June 29, 2016 by Judge London Steverson

The Commissioner the Social Security Administration (SSA) has established a five step sequential evaluation process for determining whether a person is disabled.

https://www.amazon.com/socialNsecurity-Confessions-Social-Security-Judge/dp/1449569757?ie=UTF8&ref_=asap_bc

First, it is determined whether the person is engaging in substantial gainful employment (SGA). Is he/she working? If so disability benefits are denied.

Second, if the person is not so engaged, it is determined whether the person has a medically severe impairment or combination of impairments. If the person does not have a medically determinable impairment or combination of impairments, benefits are denied.

Third, if the person has a severe impairment, it is determined whether the impairment meets or equals one of a number of “listed impairments”. If the impairment meets or equals a “Listed Impairment”, the person is conclusively presumed to be disabled.

Fourth, if the impairment does not meet or equal a “Listed Impairment”, it is determined whether the impairment prevents the person from performing Past Relevant Work (PRW). If the person can perform PRW, benefits are denied.

Fifth, if the person cannot perform PRW, the burden of proof shifts to the Commissioner of Social Security to show/prove that the person is able to perform any other kind of work.

The person is entitled to disability benefits only if he is unable to perform other work. (20 CFR Sec. 404.1520; Bowens v. Yuckert, 482 US 137, 140-142 (1987).

Step 4 explores a person’s ability to perform work you have done in the past 15 years, despite their physical or mental impairments.

It does not matter at Step 4 if the claimant’s former employer would not hire them, or if the place where the person worked is no longer in business, or if all those jobs are now done in China.

If the Social Security Administration finds that the claimant can still perform his past relevant work, benefits are denied. The process proceeds to the 5th and final step.

Step 5 determines what other work, if any, a person can perform.

The claimant has the burden of proof and the burden of going forward with the evidence at Steps 1 through 4.

At Step 5 the Burden of Proof shifts to the Commissioner of Social Security to prove that there is other work that the claimant can do despite mental and physical limitations.

The Social Security Administration considers the claimant’s age, education, work experience and physical/mental condition to make this determination.

The ALJ can use Medical-Vocational guidelines or “grids,” found at 20 C.F.R. Part 404, Subpart P, Appendix 2, at the fifth step of the disability determination after the claimant has been found not to meet the requirements of a listed impairment, but found nevertheless incapable of performing past relevant work.

The ALJ will determine what the claimant’s Residual Functional Capacity (RFC) is. That means, considering all of his/her limitations what is the claimant still capable of doing in the workplace? What is the heaviest weight he/she can lift? How long can he/she stand without a break? How long can he/she sit without a break? What level of manual dexterity is he/she capable of?

VOCATIONAL EXPERTS (VE)

A Vocational Expert witness (VE) may be called to testify to determine his/her vocational profile and whether their skills are transferrable based on the Medical-Vocational Grid (20 C.F.R. Part 404, Subpart P, Appendix 2). The VE will classify the claimant’s past relevant work according to the Dictionary of Occupational Titles (DOT). The VE will also give an opinion concerning whether there are there a significant number of jobs available in the local or national economy that he/she could apply for? A claimant cannot work if there are no jobs or a significant number of jobs available.

Vocational expert means a vocational professional who has the qualifications required by the Commissioner of SSA. The VE provides expertise to the ALJ at the hearing.

Consider this recent case where the 7th Circuit Court of Appeals rejected denial of disabled woman’s benefits.

Heather Browning v. Carolyn W. Colvin, 13-3836.

Finding repeated fault with the Social Security Administration (SSA) Administrative Law Judge (ALJ) who denied a Chandler woman Social Security disability payments, the 7th Circuit Court of Appeals reversed and remanded the case back to the SSA.

Heather Browning claimed she was intellectually and physically disabled. She has an IQ of 68 and suffers from a disease that limits the movement of her left leg.

The 7th Circuit faulted the ALJ for concluding Browning’s IQ score was invalid and that she actually had higher mental faculties because she was assessed as being sarcastic.

“The administrative law judge thought the fact that the plaintiff goes to ‘bars and clubs,’ does some cooking and shopping, helps care for a pet, watches television, and ‘only takes over-the-counter pain medications,’ showed that she can do at least sedentary work,” Judge Richard Posner wrote in Heather Browning v. Carolyn W. Colvin, 13-3836.

“He suggested (probably on the basis of her not using prescription painkillers) that she had outgrown the effects of the Legg-Calve-Perthes disease that she had had as a child and that her current problems with her left leg were the result of her obesity. (But so what? The issue is the disabling effect of those problems.)”

The appellate court asserted the administrative law judge committed an error by instructing the Vocation Expert (VE) to assume Browning could perform sedentary work.

Pointing to O’Connor-Spinner v. Astrue, 627 F.3d 614, 620 (7th Cir. 2010), Judge Posner wrote the VE could not determine Browning’s ability to work because the judge would not let her consider several of the claimant’s limitations.

Also, the 7th Circuit questioned how many jobs would be available in Chandler for Browning and noted the judge’s conclusion that Browning could work as a “hand packer” is not a job that exists in the U.S. Department of Labor’s Dictionary of Occupational Titles.

This was the Case of Heather Browning v. Carolyn W. Colvin, 13-3836.

(By Marilyn Odendahl)

Categories: Social Security Cases | 1 Comment

The Treating Physician Rule Is Controlling

Posted on June 24, 2016 by Judge London Steverson

7th Circuit: Omission of fibromyalgia diagnosis reversible error

Treating Physician Rule

The opinion of the treating physician is entitled to controlling weight. It will decide whether you get paid, if it cannot be discredited. If you do not have your own doctor, then the consultative examiner’s (CE) opinion will control. However, a treating physician’s opinion is accorded controlling weight only if the opinion is “well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record.” 20 C.F.R. § 404.1527(d)(2).

Evidence from a treating physician is not the only medical evidence that a claimant may present. Non-medical evidence, such as testimony or reports from chiropractors and physical therapists, is also admissible. Medical-related evidence, such as the testimony of personal friends, concerning what they have observed is also probative and admissible. The ALJ must consider all such evidence. The ALJ is charged with the duty to weigh all of the evidence in the record to reach a fair decision.

On occasion, the ALJ may find the evidence of a non-treating source more persuasive than that of the Treating Physician. The opinion of a treating physician “must be given substantial or considerable weight unless `good cause’ is shown to the contrary.” Good cause is shown when the:

“(1) treating physician’s opinion was not bolstered by the evidence;

(2) evidence supported a contrary finding; or

(3) treating physician’s opinion was conclusory or inconsistent with the doctor’s own medical records.”

If the ALJ can give specific reasons for failing to give the opinion of a treating physician controlling weight, and those reasons are supported by substantial evidence in the record, then there will be no reversible error.

https://www.amazon.com/socialNsecurity-Confessions-Social-Security-Judge/dp/1449569757?ie=UTF8&ref_=asap_bc

Nancy J. Thomas v. Carolyn W. Colvin, Acting Commissioner of Social Security

The 7th Circuit Court of Appeals ruled that a Social Security Administration (SSA) Administrative Law Judge (ALJ) in the Office of Disability Adjudication And Review (ODAR) committed reversal error when he omitted fibromyalgia from a woman’s list of impairments. This omission was not supported by the evidence. The Federal Circuit Court reversed denial of her application for supplemental security income (SSI).

Nancy Thomas , the claimant, was diagnosed with Graves’ disease in 2006, an autoimmune disease affecting the thyroid gland. Over the next four years she complained of headaches, shortness of breath, fatigue, pain in her neck, depression, intolerance to heat and cold, and other symptoms. She saw two doctors before filing for SSI, where she saw a state medical examiner (ME). The Social Security Administration denied her application for SSI in 2011. It took six years for her to get her benefits.

She went back to one of her treating doctors, who diagnosed her with fibromyalgia and prescribed Lyrica to help. Another doctor completed a disability questionnaire which stated she had been diagnosed with Graves’ disease and moderate fibromyalgia causing muscle and joint pains and these conditions “substantially limit” Thomas’ ability to engage in substantial gainful activity (SGA).

Thomas appeared before an ALJ a year and half after her initial denial of SSI and he denied her claim. The ALJ admitted Thomas suffered from Graves’ disease, degenerative changes of the left shoulder and lumbar spine, and dysthymic disorder, but did not acknowledge fibromyalgia because neither of her treating physicians (TA) who had diagnosed her and and who supported her was a rheumatologist. The SSA ALJ also thought Thomas’ symptoms were not severe enough and at most caused minimal limitations to Thomas’ ability to work. The District Court upheld the verdict.

(THE ONLY PERSON WHO DOES NOT GET SSI IS THE PERSON WHO DOES NOT APPEAL)

https://www.amazon.com/socialNsecurity-Confessions-Social-Security-Judge/dp/1449569757?ie=UTF8&ref_=asap_bc

Thomas appealed, claiming the ALJ’s omission of her fibromyalgia diagnosis were unsound and the conclusion about the severity of her physical impairments is not back up by evidence.

In a per curiam decision heard by Chief Judge Diane Wood and Judges William Bauer and Michael Kanne, the 7th Circuit Federal Court ruled the ALJ overlooked a second set of criteria when deciding whether Thomas had fibromyalgia, which includes a history of widespread pain and repeated occurrence of symptoms. Thomas supplied this evidence, refuting the SSA’s claim that overlooking this set of criteria was harmless error.

The 7th Circuit also agreed with Thomas that the ALJ’s claims about the severity of her symptoms were not backed up by sufficient evidence. It ruled the ALJ put too much weight on the testimony of the government’s two doctors who examined Thomas and not enough on Thomas’ Treating Physicians and her testimony.

(IF YOUR TREATING PHYSICIAN SAYS THAT YOU ARE DISABLED, THE SSA MUST PAY YOU BENEFITS. THAT IS THE RULE!)

“In finding Thomas not credible to the extent that she described more than minimal limitations, the ALJ relied on the seeming lack of objective evidence supporting Thomas’s subjective account of her symptoms, but, as discussed earlier, the ALJ skipped over the substantial findings of Thomas’s treating physicians and physical therapist that showed that her impairments indeed would limit her ability to perform Substantial Gainful Activity SGA,” the panel wrote in remanding the case for further proceedings.

The case is Nancy J. Thomas v. Carolyn W. Colvin, Acting Commissioner of Social Security, 15-2390. (By Scott Roberts, June 23, 2016.)

Categories: Social Security Cases | Tags: Fibromyalgia, socialNecurity, SSI, treating Physician Rule | 1 Comment

Social Security Administration Uses IRS To Seize Poor Peoples’ Tax Refunds To Pay For Debts Incurred By Their Parents

Posted on April 12, 2014 by Judge London Steverson

Social Security, Treasury target taxpayers for their parents’ decades-old debts.

Evelyn Hockstein/For The Washington Post – Mary Grice of Takoma Park, MD, talks with her attorney Robert Vogel, at Vogel’s home in Rockville Maryland, April 5, 2014.

A few weeks ago, with no notice, the U.S. government intercepted Mary Grice’s tax refunds from both the IRS and the state of Maryland. Grice had no idea that Uncle Sam had seized her money until some days later, when she got a letter saying that her refund had gone to satisfy an old debt to the government — a very old debt.
When Grice was 4, back in 1960, her father died, leaving her mother with five children to raise. Until the kids turned 18, Sadie Grice got survivor benefits from Social Security to help feed and clothe them.

Now, Social Security claims it overpaid someone in the Grice family — it’s not sure who — in 1977. After 37 years of silence, four years after Sadie Grice died, the government is coming after her daughter. Why the feds chose to take Mary’s money, rather than her surviving siblings’, is a mystery.

Across the nation, hundreds of thousands of taxpayers who are expecting refunds this month are instead getting letters like the one Grice got, informing them that because of a debt they never knew about — often a debt incurred by their parents — the government has confiscated their check.

The Treasury Department has intercepted $1.9 billion in tax refunds already this year — $75 million of that on debts delinquent for more than 10 years, said Jeffrey Schramek, assistant commissioner of the department’s debt management service. The aggressive effort to collect old debts started three years ago — the result of a single sentence tucked into the farm bill lifting the 10-year statute of limitations on old debts to Uncle Sam.

No one seems eager to take credit for reopening all these long-closed cases. A Social Security spokeswoman says the agency didn’t seek the change; ask Treasury. Treasury says it wasn’t us; try Congress. Congressional staffers say the request probably came from the bureaucracy.

The only explanation the government provides for suddenly going after decades-old debts comes from Social Security spokeswoman Dorothy Clark: “We have an obligation to current and future Social Security beneficiaries to attempt to recoup money that people received when it was not due.”

Since the drive to collect on very old debts began in 2011, the Treasury Department has collected $424 million in debts that were more than 10 years old. Those debts were owed to many federal agencies, but the one that has many Americans howling this tax season is the Social Security Administration, which has found 400,000 taxpayers who collectively owe $714 million on debts more than 10 years old. The SSA expects to have begun proceedings against all of those people by this summer.

“It was a shock,” said Grice, 58. “What incenses me is the way they went about this. They gave me no notice, they can’t prove that I received any overpayment, and they use intimidation tactics, threatening to report this to the credit bureaus.”

Grice filed suit against the Social Security Administration in federal court in Greenbelt,MD., alleging that the government violated her right to due process by holding her responsible for a $2,996 debt supposedly incurred under her father’s Social Security number.

Social Security officials told Grice that six people — Grice, her four siblings and her father’s first wife, whom she never knew — had received benefits under her father’s account. The government doesn’t look into exactly who got the overpayment; the policy is to seek compensation from the oldest sibling and work down through the family until the debt is paid.

The Federal Trade Commission, on its Web site, advises Americans that “family members typically are not obligated to pay the debts of a deceased relative from their own assets.” But Social Security officials say that if children indirectly received assistance from public dollars paid to a parent, the children’s money can be taken, no matter how long ago any overpayment occurred.

“While we are responsible for collecting delinquent debts owed to taxpayers, we understand the importance of ensuring that debtors are treated fairly,” Treasury’s Schramek said in a statement. He said Treasury requires that debtors be given due process.

Social Security spokeswoman Clark, who declined to discuss Grice’s or any other case, even with the taxpayer’s permission, said the agency is “sensitive to concerns about our attempts to arrange repayment of overpayments.” She said that before taking any money, Social Security makes “multiple attempts to contact debtors via the U.S. Mail and by phone.”

Grice, who works for the Food and Drug Administration and lives in Takoma Park, in the same apartment she’s resided in since 1984, never got any notice about a debt.

Social Security officials told her they had sent their notice to her post office box in Roxboro, N.C. Grice rented that box from 1977 to 1979 and never since. And Social Security has Grice’s current address: Every year, it sends her a statement about her benefits.

“Their record-keeping seems to be very spotty,” she said.

Treasury officials say that before they will take someone’s refund, the agency owed the money must certify the debt, meaning there must be evidence of the overpayment. But Social Security officials told Grice they had no records explaining the debt.

“The craziest part of this whole thing is the way the government seizes a child’s money to satisfy a debt that child never even knew about,” says Robert Vogel, Grice’s attorney. “They’ll say that somebody got paid for that child’s benefit, but the child had no control over the money and there’s no way to know if the parent ever used the money for the benefit of that kid.”

Grice, the middle of five children, said neither of her surviving siblings — one older, one younger — has had any money taken by the government. When Grice asked why she had been selected to pay the debt, she was told it was because she had an income and her address popped up — the correct one this time.

Grice found a lawyer willing to take her case without charge. Vogel is exercised about the constitutional violations he sees in the retroactive lifting of the 10-year limit on debt collection. “Can the government really bring back to life a case that was long dead?” the lawyer asked. “Can it really be right to seize a child’s money to satisfy a parent’s debt?”

But many other taxpayers whose refunds have been taken say they’ve been unable to contest the confiscations because of the cost, because Social Security cannot provide records detailing the original overpayment, and because the citizens, following advice from the IRS to keep financial documents for just three years, had long since trashed their own records.

In Glenarm, Ill., Brenda and Mike Samonds have spent the past year trying to figure out how to get back the $189.10 tax refund the government seized, claiming that Mike’s mother, who died 33 years ago, had been overpaid on survivor’s benefits after Mike’s father died in 1969.

“It was never Mike’s money, it was his mother’s,” Brenda Samonds said. “The government took the money first and then they sent us the letter. We could never get one sentence from them explaining why the money was taken.” The government mailed its notice about the debt to the house Mike’s mother lived in 40 years ago.

The Social Security spokeswoman said the agency uses a private contractor to seek current addresses and is supposed to halt collections if notices are returned as undeliverable.

After hours on the phone trying and failing to get information about the debt Mike’s mother was said to owe, the Samondses gave up.

After waiting on hold for two hours with Social Security last week, Ted Verbich also concluded it wasn’t worth the time or money to fight for the $172 the government intercepted last month.

In 1977, Verbich, now 57, was in college at the University of Maryland when he took a full-time job in an accountant’s office. Because he was earning income, he knew he had to give up the survivor’s benefits his mother had received since his father died, when Verbich was 4. But his $70 monthly checks — “They helped with the car payment,” he said — kept coming for a short time after he started work, and Verbich was notified in 1978 that he had to repay about $600. He did.

Thirty-six years later, with no notice, “they snatched my Maryland tax refund,” said Verbich, a federal worker who has lived at the same address in Glendale, Md,. for 30 years and regularly receives Social Security statements there. The feds insisted that he owed $172 but could provide no documents to back up the claim.

Verbich has given up on getting his refund, but he wants a receipt stating that his debt to his country is resolved.

“I’ll put in the request,” a Social Security clerk told Verbich, “but in reality, you’ll never get anything.”

Grice was also told there was little point in seeking a waiver of her debt. Collections can only be halted if the person passes two tests, Clark said: The taxpayer must prove that he “is without fault, and [that] repayment of the overpayment would deprive the person of income needed for ordinary living expenses.”

More than 1,200 appeals have been filed on the old cases, Clark said; taxpayers have won about 10 percent of those appeals.

The Treasury initially held the full amount of Grice’s federal and state refunds, a total of $4,462. Last week, after The Washington Post inquired about Grice’s case, the government returned the portion of her refund above the $2,996 owed on her father’s account.

But unless the feds can prove that she ever received any of the overpayment, Grice wants all of her money back.

“Look, I love a good fight, especially for principle,” she said. “My mom used to say, ‘This country is carried on the backs of the little people,’ and now I see what she meant. This is really sad.”

(Fisher, Marc, The Washington Post, April 11, 2014, p. A1)

FORT THOMAS, Ky. – Cathy Frost opened her mail last week expecting to receive her tax refund. Instead, the Treasury Department sent her a notice that Uncle Sam was keeping her $344.

“I was taken aback. I had already allocated the funds. I couldn’t believe it,” the Fort Thomas woman said Friday.

“I didn’t know the government could just keep your refund. I felt like I was being robbed.”

Thousands of Americans had the same feeling when they got the same letter.

Most of them didn’t know that the Treasury Department has been confiscating tax refunds to recover government over-payments – mainly in Social Security benefits – from beneficiaries or their survivors.

Some of the debts, as in Frost’s case, are their parents’ and are decades old.

There was such an outcry from taxpayers and politicians that the Social Security Administration announced this week that it was going to stop seizing tax refunds pending an SSA review.

But that doesn’t help Frost, a 55-year-old single woman who just lost her job due to downsizing.

She found out she might not get her money back, even though the SSA overpaid her father – and not her – some 40 years ago, when Frost was a minor.

The whole episode has left her shaking her head, frustrated with her government.

Frost said she called the 800 number on the letter last week and talked with an SSA office worker in Chicago.

“They were unable to give me any details, only that there was an overpayment of $869.20 that may have been dispersed to myself or any family member,” she said.

Frost said she told the SSA rep that her father had died when she was 18.

“I wasn’t eligible for benefits, but my younger brother was 17 and my sister was 15, so they would have received benefits for a short period of time,” she said.

“It could even have been my father, because my mother died when I was 9, so he might have received benefits from her.

“They said, ‘Well, that must have been it.’ But they couldn’t tell me for sure. They said they didn’t have any details.

“They said all they could do is take a request to have somebody contact me and send me more information.

“I thought, ‘This is insane! How could people do that? And this is our government!’ “

When the SSA announced that it was suspending the seizure program, the agency directed Frost and other taxpayers to visit a field office and request a waiver for the overpayment.

Frost said she went to the SSA office in Florence on Good Friday, April 18th.

“They checked the records and told me it was an overpayment to my father when I was a minor, so I’m eligible for a waiver,” she said. “They gave me a list of things I’m supposed to turn in, and if they determine I’m not able to afford the overpayment, they will waive it.”

Talk about government red tape.

The SSA wants to see Frost’s rent or mortgage payments, utilities, loans and credit card payments, medical and dental payments, insurance, property taxes and other fees and obligations, she said.

Before she left the office, the staffer gave her a list of local attorneys, she said.

She said she’s thinking about calling one.

“We’re not talking about that much money, and they’d probably decide I’m able to afford it. But I don’t make that much and I just got downsized from Avon after 17 years,” Frost said.

“It doesn’t seem fair for the government to penalize me for something that happened when I was a minor, that I was not a part of.”

She said the government did not seize her brother’s or sister’s tax refunds – only hers.

The Social Security Administration says it has identified about 400,000 people with old debts. They owe a total of $714 million.

So far, the agency says it has collected $55 million.

There used to be a 10-year limit on collecting old debts, but thanks to an unidentified legislator who slipped a rider into the 2008 farm bill, the government can legally recover any overpayment, even from 40 years ago.

“It’s totally nuts,” Frost said.

CNBC (Apr 11, 2014)

US seizing tax refunds of children over parents’ debt?!

Jake Novak | @jakejakeny

Friday, 11 Apr 2014

The government is now going through old records to see if it overpaid people on Social Security. If it thinks it did, it can now seize the IRS tax refund checks of the CHILDREN of those people it thinks it overpaid.

This isn’t a proposal—it’s already happening. For the past three years, the government has been confiscating hundreds of thousands of Americans’ tax refunds, according to the Washington Post. It has already confiscated $1.9 billion in tax refunds this year alone.

Peter Zander | Workbook Stock | Getty Images

The amazing thing is that the government is doing this even if it has little or no proof and no exact details. And the letters the government sends to unsuspecting taxpayers are frightening, use accusatory language, and include other financial threats.

“They gave me no notice, they can’t prove that I received any overpayment, and they use intimidation tactics, threatening to report this to the credit bureaus,” Mary Grice, who had her tax refunds seized a few weeks ago, is quoted as saying.

As usual, no one in the government is willing to take the responsibility for this new policy—Social Security said it didn’t do it, ask the Treasury Department. Treasury said—ask Congress.

If you think this is some kind of unprecedented outrage, you’re right. But here’s some advice: get used to it.

Tax refunds are clearly becoming the new promised land for government regulators and bureaucrats desperate for more revenues. We already know that confiscating tax refunds are the only real way the IRS will be able to impose Obamacare non-compliance penalties, and now it seems like the Social Security Administration is jumping on that bandwagon.

But there’s a more powerful and disturbing message here. Remember that the people who benefited from these alleged Social Security payments have not committed any crime—that’s why the government doesn’t need to provide any proof or real documentation. It’s more likely that the SSA simply screwed up and expects the descendants of its accidental beneficiaries to pay up. And again, the money comes out first before you can protest and find out why.

So, now we have yet another very good reason to make sure you don’t get a tax refund. First, getting a tax refund means you’ve given the government a free loan for 12 months.

Second, tax refunds are the only way you can be punished—rightly or wrongly—for any ObamaCare (Affordable Care Act) individual mandate non-compliance. And third, your tax refund is now a possible target for government bureaucrats who screwed up in the past and want to come after your money to make it right. If the SSA can do it, what’s to stop the other agencies?

After hearing this story, you wouldn’t think anyone would have to remind the public that Washington already controls too much of their money and has trampled on too much of our financial rights. But I will anyway since so many politicians and other elites don’t seem to be backing down on their incessant calls for more regulations, oversight and of course, more taxes.

Once again, we have a case of the government saying: “When you screw up, you pay. When we screw up, you also pay.”

If only our elected leaders would be so honest with us at election time.

This is commentary from Jake Novak, the supervising producer of “Street Signs.”

POLITICS

Government suspends controversial program to recover money from adult children of dead taxpayers

Published April 14, 2014

FoxNews.com

The Social Security Administration announced Monday it is suspending a controversial program that goes after adult children of deceased taxpayers who the government claims were recipients of overpayments more than a decade ago.

Acting Social Security Commissioner Carolyn W. Colvin said she has directed an immediate halt to the three-year-old program while the agency does a review. The controversial program seized tax refunds in an effort to recoup the funds.

The move to stop the program came after many of the recipients and members of Congress complained to the federal agency.

“While this policy of seizing tax refunds to repay decades-old Social Security overpayments might be allowed under the law, it is entirely unjust,” Democratic Sens. Barbara Boxer of California and Barbara Mikulski of Maryland said in a letter to Colvin.

The program was authorized by a 2008 change in the law that allows Social Security and other federal agencies to use a Treasury program to seize federal payments to recoup debts that are more than 10 years old. Previously, there was a 10-year limit on using the program.

In most cases, the seizures are done through tax refunds.

The change was tucked into the 2008 farm bill — but trying to track down which lawmaker added in the one line that lifted the 10-year statute hasn’t been easy. And, not surprisingly, Washington lawmakers haven’t been eager to step up to the plate and take the blame.

Leslie Paige, vice president of policy and communications at Citizens Against Government Waste, says it’s a common problem in Congress.

“Lawmakers try to sneak in these one or two lines into gigantic legislative packages,” Paige told FoxNews.com. “It’s a dirty little secret. Members of Congress don’t know what they are voting on most of the time.”

Paige said the “unintended consequences” of these bills are felt hardest on Americans often left powerless to fight the federal government.

“All [lawmakers] care about is ‘Did my pork, my earmark, my little provision get into this gigantic mess of a bill?’” she said.

Following Colvin’s announcement Monday, Boxer said in a statement: “I am grateful that the Social Security Administration has chosen not to penalize innocent Americans while the agency determines a fair path forward on how to handle past errors.”

Mikulski added, “Garnishing these refunds to collect overpayments incurred through no fault of their own and based on decades-old errors is a policy that must not continue.”

Sen. Chuck Grassley, R-Iowa, praised the Social Security Administration for suspending the debt collection but continued to raise questions Monday about how this started.

“It’s not clear where that authority came in. There’s a difference between collecting decades-old debt from the debtors and decades-old debt from their kids,” he said.

The Social Security Administration says it has identified about 400,000 people with old debts. They owe a total of $714 million.

So far, the agency says it has collected $55 million.

Colvin said she was suspending the program “pending a thorough review of our responsibility and discretion under the current law to refer debt to the Treasury Department.”

“If any Social Security or Supplemental Security Income beneficiary believes they have been incorrectly assessed with an overpayment under this program, I encourage them to request an explanation or seek options to resolve the overpayment,” Colvin said.

The Washington Post first reported on the program.

There are several scenarios in which people may have received overpayments as children. For example, when a parent of a minor child dies, the child may be eligible for survivor’s benefits, which are typically sent to the surviving parent or guardian.

If there was an overpayment made on behalf of the child, that child could be held liable years later, as an adult.

Also, if a child is disabled, he or she may receive overpayments. Those overpayments would typically be taken out of current payments, once they are discovered.

But if disability payments were discontinued because the child’s condition improved, Social Security could try to recoup the overpayments years later.

“We want to assure the public that we do not seek restitution through tax refund offset in cases when the debt in question was established prior to the debtor turning 18 years of age,” Social Security spokesman Mark Hinkle said in an email. “Also, we do not use tax refund offset to collect the debt of a person’s relative — we only use it to collect the overpaid benefits the person received for himself or herself.”

Hinkle said the debt collection could be waived if the person is without fault and repayment would “deprive the person of income needed for ordinary living expenses or would be unfair for another reason.”

The Associated Press contributed to this report

‘Government suspends controversial program to recover money from adult children of dead taxpayers’

By Nick Sorrentino on April 15, 2014

In the words of 2 people I spoke to about this story – “How can this be legal?”

Good question. At least they’re stopping it.

(From FoxNews.com)

The Social Security Administration announced Monday it is suspending a controversial program that goes after adult children of deceased taxpayers who the government claims were recipients of overpayments more than a decade ago.

Acting Social Security Commissioner Carolyn W. Colvin said she has directed an immediate halt to the three-year-old program while the agency does a review. The controversial program seized tax refunds in an effort to recoup the funds.

Another win for social media.

Click here for the article.

Source

“Government suspends controversial program to recover money from adult children of dead taxpayers.” Foxnews.com, 2014-04-14.

About Nick Sorrentino

Nick Sorrentino is the co-founder and editor of AgainstCronyCapitalism.org. A political and communications consultant with clients across the political spectrum, his work has been featured at Breitbart.com, Reason.com, NPR.com, Townhall, The Daily Caller, and many other publications. A graduate of Mary Washington College he lives just outside of Washington DC where he can keep an eye on Leviathan.

House Ways and Means Oversight Subcommittee Chairman Rep. Charles Boustany, and Social Security Subcommittee Chairman Rep. Sam Johnson seek answers on Treasury debt recovery program

By Aaron Martin | April 18, 2014

House Ways and Means Oversight Subcommittee Chairman Rep. Charles Boustany (R-La.) and Social Security Subcommittee Chairman Rep. Sam Johnson (R-Texas) recently sought answers about the Treasury Department’s Offset Program and its effects on children who once received Social Security benefits.
Boustany and Johnson wrote to Treasury Secretary Jack Lew and acting Social Security Administration Commissioner Carolyn Colvin about recent reports that adults who may have once received Social Security benefits as children had their tax refunds withheld for overpayments made decades ago to their parents.
The parents of some of the affected citizens are deceased and many of the taxpayers never received notice that they owed a debt as provided under law.
Colvin announced last week that the SSA would stop additional referrals of debts to the Treasury Department owed to Social Security that are 10 years or older for collection under the Treasury Offset Program.
“SSA’s decision to stop referrals was the right thing to do,” Boustany and Johnson said. “However, Treasury and Social Security still owe an explanation to the American people. While the government must protect taxpayer dollars, it is difficult to justify the practice of seizing innocent Americans’ tax refunds to pay debts resulting from benefits they may or may not have received when they were children, with little or no notice or evidence documenting the overpayment. The sooner we have those answers the sooner we can work to protect Americans from agency actions that are harsh and unfair.”
The Washington Post reported on April 10 that the Treasury has intercepted $1.9 billion in tax refunds this year, including $75 million of delinquent debts 10 years of age or older. Additionally, 400,000 taxpayers who owe a total of $714 million in debts more than 10 years old have been identified by SSA.

Categories: Social Security Cases | Tags: Cadet Webster Smith, Coast Guard Academy, Social Security | Leave a comment

Red Flag Judges At Social Security Says Rep. Jackie Speier

Posted on April 9, 2014 by Judge London Steverson

When California Rep. Jackie Speier is not chasing military officers looking for sexual sadists, she is following Social Security Judges trying to “red flag” them. She proposes a system to review cases from “red flag” judges. Judges who have high approval rates send up ‘red flags’. Speier has had enough. The Democrat from San Mateo who has been on the front lines fighting to expose and correct the epidemic of sexual assault and harassment in the military has turned her attention to her own colleagues. Representative Speier introduced a bill that would require all House members and staff to take sexual harassment training every two years.

Rep. Jackie Speier, California Democrat, one of the heads the House Oversight and Government Reform subcommittee on health care, say Social Security employees should be allowed to look at the social media profiles (such as, Facebook, Twitter, etc) of those applying for disability, reasoning that photos and other information people post can expose the applicants as able-bodied.

She also said that two Social Security judges may have approved thousands of bogus disability claims, but the agency has never gone back to review those judges’ cases to stop the ones that were fraudulent.

Speier said the agency should come up with a system to review cases from “red-flag” judges who show inclinations toward rubber-stamping applications.

In an exhaustive 11-page memo to Social Security acting Commissioner Carolyn W. Colvin, she detailed nearly a dozen recommendations for improving a disability system that has received an explosion of applications in recent years and is in danger of going bankrupt by 2016.

It was indefensible that the Social Security Administration (SSA) hasn’t reviewed applications approved by two administrative law judges, David B. Daugherty in West Virginia and Charles Bridges in Pennsylvania, who have been accused of making bogus disability determinations.

Kia Anderson, a spokeswoman for Social Security, said the SSA takes fraud seriously and will review the lawmakers’ recommendations.

“We recognize that one case of fraud is too many and work aggressively to detect and prevent abuses. We continue to enhance our program integrity efforts by adding tools like data analytics which enables us to identify patterns of suspicious behavior in disability applications,” she said.

She made a pitch for Congress to grant more funding so the SSA can put more effort into preventing fraud.

The oversight committee has been looking into the disability issue for some time and took testimony from Judge Jasper J. Bede, an SSA Regional Chief Administrative Law Judge who told investigators that some judges appeared to be rubber-stamping applications. (Read more at http://www.amazon.com/socialNsecurity-Confessions-Social-Security-Judge/dp/1449569757)

Judge Bede singled out Judge Bridges, who decided more than 2,000 cases a year and who often went beyond looking at an applicant’s disability and considered income or other factors.

Judge Daugherty, meanwhile, approved 99.7 percent of his cases from 2005 through 2011, awarding disability benefits to 8,413 people — the equivalent of $2.5 billion in total lifetime benefits.

Major cases of disability fraud have been reported in West Virginia, Puerto Rico and, most recently, New York City, where investigators said police officers falsely claimed disability from the Sept. 11, 2001, terrorist attacks.

Some of those New York cases were exposed in part because investigators found online photos of the officers engaged in flying helicopters, going on deep-sea sport-fishing trips and riding personal watercraft.

That is one reason lawmakers want Social Security employees to scour social media before approving applications, and again when they go back for periodic checks, known as continuing disability reviews (CDR).

“To increase efficiency and reduce the number of erroneous disability determinations, SSA personnel should be allowed to review each applicant’s social media accounts prior to the decision to award benefits. Additionally, we suggest that SSA require that all CDRs incorporate a review of the beneficiary’s social media accounts,” Ms. Speier said.

Social Security has repeatedly refused to let its investigators use social media, arguing that its judges aren’t trained to evaluate the information.

“Adjudicators should do what they are trained to do: Review voluminous files to determine eligibility for disability benefits. Office of Inspector General fraud investigators should do what they are trained to do: vigorously follow up on any evidence of fraud,” said Ms. Anderson.

From 2010 through 2012, Americans filed 8.6 million disability claims, but judges and Social Security’s disability review office reported only 411 suspicions of fraud. That works out to fewer than one out of every 20,000 applications.

Part of the problem is that Social Security is lax in reviewing cases of those deemed temporarily disabled to see whether they have recovered.

But a review of cases from 1980 through 1983 found 40 percent of those receiving disability benefits were not disabled, suggesting a tremendous level of bad payments.

Disability judges who have high approval rates send up red flags because by the time a case gets to an administrative law judge, it has already been denied by at least one previous review at the State DDS, and often by a second DDS review, the two lawmakers said. That would suggest the approval rate for those cases should be low.

Social Security is made up of two trust funds. The main one is the Old Age and Survivors Insurance Trust Fund, with the Disability Insurance Trust Fund accounting for a smaller but growing part of the agency’s work.

Categories: Social Security Cases | Tags: Administrative law judge, Daugherty, Disability, Social Security, Social Security Administration, Social Security Disability Insurance, socialNsecurity | Leave a comment

Social Security Judges Must Follow Treating Physician Rule

Posted on March 19, 2014 by Judge London Steverson

Judge Revives Claim For Disability Benefits

Eastern District Judge Arthur Spatt (See Profile) has ordered the Social Security Administration (SSA) to reconsider its decision to deny disability benefits to a 55-year-old union carpenter with a knee injury, finding that an administrative law judge rejected the opinions of the man’s treating physician without justification.

The plaintiff, William Box, slipped and fell on the job in January 2009. He was later diagnosed with multiple injuries in his right knee, including a torn anterior cruciate ligament and torn meniscus. He eventually underwent two surgeries. In November 2009, Box applied for disability benefits. In August 2010, an administrative law judge denied the application. An Appeals Council (A/C) denied Box’s petition for review, and in March 2012, he sued the Social Security Administration seeking to overturn the decision.

Box’s treating physician, Benizon Benatar, submitted an opinion that Box was completely disabled because he could not stand or walk for more than two hours a day.

Another doctor, Erlinda Austria, also examined Box at the request of the New York State Division of Disability Determination. Austria opined that Box was capable of light work. A person capable of light work is presumed to be able to stand and/or work for six of eight hours in a day.

District Judge Spatt found that the ALJ had improperly credited Austria’s testimony over Benatar’s without justification, going against the “treating physician rule,” which requires deference to an applicant’s treating physician.

While an ALJ can choose not to credit a treating physician, Spatt said, that choice must be justified by an analysis of the record, which the ALJ did not do.

Spatt therefore remanded the case for further proceedings consistent with the opinion.

The Claimant, William Box is represented by Sharmine Persaud.

The SSA is represented by Eastern District Assistant U.S. Attorney Vincent Lipari.

The case is Box v. Colvin, 12-cv-1317.

(Brendan Pierson, New York Law Journal,March 19, 2014 )
Read more: http://www.newyorklawjournal.com/id=1202647472089/Judge-Revives-Claim-For-Disability-Benefits#ixzz2wRwdyspq

Categories: Social Security Cases | Tags: Administrative law judge, Benizon Benatar, Disability Benefits, District Judge Spatt, Eastern District Judge Arthur Spatt, Social Security, Social Security Administration, Social Security Disability Insurance, socialNsecurity, SSA, SSDI, William Box | Leave a comment

Video Hearings At Social Security Are A Denial Of Due Process Rights

Posted on March 16, 2014 by Judge London Steverson

Social Security Disability Video Hearings Increased In 2013

More people than ever before attended a video hearing in 2013 while seeking Social Security disability benefits.

The number of video hearings increased to 179,308 in fiscal year 2013, more than double the 86,320 video hearings in FY 2009, according to data released by the Social Security Administration (SSA) in its Annual Performance Plan for Fiscal Year 2015. This was an increase of nearly 17 percent from 153,592 video hearings the previous year (FY 2012).

Video hearings are one of the methods SSA uses to reduce the backlog of SSDI claims.

The use of video-conferencing technology to exclude the Claimant from being physically present in the same Hearing Room as the ALJ and other witnesses violates the Claimant’s due process rights.

A Claimant who can only observe witnesses on a television screen will not be able to observe

the demeanor of the witnesses and properly ascertain the accuracy and reliability of their proffered evidence.

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

The primary reason, among others, for the use of video hearings is to reduce travel costs and conserve the time of its ALJs and hearing support staff without diminishing the Claimant’s ability to effectively participate in the hearing.”

Social Security (SSA) recently changed its rules regarding videoteleconferencing (VTC), and is now sending notices regarding VTC at an early stage of the hearing level. The new notice requires a decision within 30 days whether or not to object to a video hearing. Previously, the objection to VTC was not made until the time a hearing was actually scheduled.
By moving forward the date by which an objection can be made, the issue of whether to accept a VTC is much easier. You may not know the identity of your judge or when your hearing will be scheduled. This should, make it much easier to “Just say No” to a video hearing.
Social Security loves to use VTC. It is an effective way to reduce a Backlog. There are national hearing centers where administrative law judges (ALJ) hear cases all day by video from remote locations.
SSA expected this change in policy would lead to fewer objections to video hearings. It might have the opposite effect. Logically, if claimants have lawyers who give good advice, this might lead to more refusals to VTC hearings.
Claimants’ representatives are acquainted with the ALJs in their area. They know what the ALJs are looking for in order to decide a case. They can read their body language at an in-person hearing.
A smart attorney would not risk the possibility of his cases being heard by a distant unknown ALJ.
There is another issue that attorneys must consider. ALJs from remote parts of the USA have different and sometimes strange ways of looking at and sizing-up claimants. Also, claimants in certain regions of the USA have different and unique behavioral habits. These peculiarities will effect how an ALJ looks at and judges the claimant and the evidence. Many times it is like a roll of the dice to accept a VTC Hearing. It is safer to “Just Say NO!”.
Every case will be different. It would not be smart to adopt a blanket policy. Every case should be evaluated on its own merit, but the first impulse should always be to refuse to accept a VTC Hearing. You have little to gain and much to loose.

A Claimant could argue that the SSA ALJ must give the Claimant an “opportunity to appear,” as provided in the U S Constitution which requires the defendant and the judge to be physically present in the same courtroom.

Most reasonable people would agree with this contention, referring to the meaning of appear and to the traditional understanding of a Claimant’s appearance before a court empowered to deprive him of his property, that is to say, his Disability Benefits.

It is noted that both the Webster’s Dictionary and the Black’s Law Dictionary define appear and

appearance so as to suggest that an appearance can only occur if the person comes into the physical presence of the judge. To appear means to be physically present.

The form and substantive quality of a hearing is altered when either the defendant or

the judge is absent from the hearing room, even if he or she is participating by video-conference.

SSDI is a federal insurance program that provides monthly income to people under full retirement age (65-67) with a severe disability lasting at least 12 months or a terminal condition.To apply for SSDI benefits, someone must be unable to work.

SSDI is funded by FICA payroll taxes paid by workers and their employers.

Individuals reach the hearing level after their initial application has been denied two times by the State Disability Determination Service (DDS).

Most hearings are still held in person before administrative law judges (ALJs). But Social Security is increasing its ability to perform hearings through video conferencing, including using video at National Hearing Centers. The SSA has five of these centers in Albuquerque, N.M., Baltimore, Chicago, Falls Church, Va., and St. Louis. (Statistics provided by ALLSUP)

A claimant will give up important due process rights if he or she opts for a video hearing.

During a video hearing, the ALJ, claimant and representative interact with each other using videoconferencing equipment, very similar to a large television. The judge usually remains at his location and connects by video with the claimant at his or her location.

Video conferencing can be more convenient for the claimant, if he or she lives in a remote area. And it saves travel time for the judge.

Consider the following information when preparing for an SSDI hearing.

How should I dress? A hearing is not a time to dress casually. A business suit isnt required, but jeans, shorts and flip flops arent a good idea, even for a video hearing.
What happens when I get there? The process typically is the same for hearings, video or in-person. The judge leads the hearing, and he or she asks questions of the claimant and the representative.
Whats different with a video hearing? It can be important for someone to provide technical support, to make sure the video and sound quality are good, and to ensure the sound recording is working properly. The sound recording is kept for the records.
Who else is there? There also can be vocational experts, medical experts and other witnesses at the hearing to provide testimony.
How does the hearing end? The entire hearing may last about an hour as the ALJ evaluates the information being provided by the person who is seeking SSDI benefits and other testimony. When the judge has all the information he or she needs, the hearing is ended. Its rare that the judge announces the decision (to award or approve) at the conclusion of the hearing.

Some people become very frustrated at video hearings.

MADISON, Wisconsin — A Wisconsin Rapids woman will spend three years on probation for threatening to kill a federal administrative law judge (ALJ).

Fifty-one-year-old Norma Prince was sentenced Thursday March 6, 2014. Prince pleaded guilty in December.

Prosecutors say the incident happened Jan. 31, 2013, when Prince appeared at a Social Security disability benefits hearing in Wausau.

Administrative Law Judge Thomas Sanzi was presiding over the hearing by video teleconference from Madison. Prosecutors say Prince became upset and threatened to shoot Judge Sanzi and cut off his head. The hearing was halted and Prince was escorted from the courtroom.

Prince’s husband told a federal agent that his wife had bought two .22-caliber rifles about a month before the disability hearing.

At sentencing, U.S. District Judge Lynn Adelman said Prince’s mental health issues can be controlled through medication and supervision.

A video-conference hearing is one at which all parties were physically present except for the judge and the court reporter, who participate by video-conference from a remote location.

SSDI claimants should challenge the judge’s decision to conduct a hearing by

video-conference.

I present here the question of first impression for SSA SSDI appeals: “whether the

use of video-conferencing to conduct a hearing violates the Fifth Amendment’s Due Process Clause.

Although the SSA and no SSA ALJ has previously confronted this exact

issue, the question of the constitutional and statutory validity of the use

of videoconferencing technology by the Federal Administrative Agencies is far from

novel. As technology has advanced rapidly, the SSA has been faced with a surge of new, unforeseen issues that it has had to resolve without legislative direction.

The invention of video-conferencing appeared to be a perfect solution to the SSA; so, it has encouraged the use of video-conferencing systems in the Hearing Rooms.

Courts and government agencies have implemented the use of

video-conferencing technology in post-conviction proceedings, including

probation, parole, and supervised release revocation hearings.

The courts of appeals are beginning to strike down the practice, but only on

statutory grounds. This trend appears to rest on the general principle

of judicial restraint that requires courts to avoid constitutional questions

if statutory analysis is sufficient.

However, in the absence of legislation or a decision from the United

States Supreme Court, there remains the potential that SSA ALJ Hearings and other federal courts, could find that video-conferencing violate a Claimant’s Due Process rights.

Therefore, the due process rights undermined by the use of video-conferencing technology

deserve the judiciary’s attention, particularly the right to be present at your Hearing, and to effective assistance of counsel and the right to confront adverse witnesses, such as, SSA’s Consultative Medical Examiners (ME) and Vocational Experts (VE).

Videoconferencing at Rule 43 Criminal Proceedings

In the 1990s and early 2000s, circuit courts first considered whether

the use of videoconferencing at a criminal proceeding governed by Rule 43

satisfies the statutory requirement that a defendant be “present.”

Since that time, the Fourth, Fifth, Ninth, and Tenth Circuits have held

that the use of videoconferencing at Rule 43 proceedings violates a

defendant’s statutory rights. For example, the Tenth Circuit confronted this issue in 2002 in

United States v. Torres-Palma. In Torres-Palma, the defendant appeared by videoconference at his

sentencing, which took place in a different state than where the judge presided. In determining that Rule 43 required a defendant to be physically present at sentencing, the court concluded that the content and the plain reading of the text of Rule 43, along with the Webster’s Dictionary and Black’s Law Dictionary definitions of presence and present, mandated that physical presence

was required.

Fifth Circuit noted that the rights protected by Rule 43 include not only due process rights and the common law right to be present, but also the right of a defendant to meet face-to-face with witnesses appearing before the trier of fact, as governed by the Confrontation Clause.

After the Tenth Circuit’s decision and the decisions of its sister circuits, it was clear that, even though the use of videoconferencing could increase productivity and save money, the technology was not appropriate for Rule 43 proceedings because it violated both common law and statutory rights to be present.

The reason for the use of video hearings is to reduce travel costs and conserve the time of its ALJs and hearing support staff without diminishing the Claimant’s ability to effectively participate in the

hearing.”

Violates his statutory and constitutional rights when it denied his request for an in-person

hearing. Specifically, the use of videoconferencing violated his due process rights and 18 U.S.C. § 4208(e), which requires that a prisoner “be allowed to appear and testify on his own behalf.

A Claimant could argue that the SSA ALJ must give the Claimant an “opportunity to appear,” as provided in the U S Constitution which requires the defendant and the judge to be physically present in the same courtroom.

Most reasonable people would agree with this contention, referring to the meaning of appear and to the traditional understanding of a Claimant’s appearance before a court

empowered to deprive him of his property, that is to say, his Disability Benefits.

It is noted that both the Webster’s Dictionary and the Black’s Law Dictionary define appear and

appearance so as to suggest that an appearance can only occur if the person comes into the physical presence of the judge. To appear means to be physically present.

The form and substantive quality of a hearing is altered when either the defendant or

the judge is absent from the hearing room, even if he or she is participating by video-conference.

The Seventh Circuit of Appeals referred to the Supreme Court’s decision in

Escoe v. Zerbst, in which the Supreme Court determined that a lower

court’s decision to revoke a defendant’s probation without a hearing

violated the requirement that he be “brought before the court.” Although Escoe

predated video-conferencing technology, and the Internet for that matter, the case provided the traditional legal understanding of a person’s appearance. In Escoe, the Court held that

“‘the end and aim of an appearance before the court’ under the statute was to ‘enable an accused [parolee] to explain away the accusation,’ and this required ‘bringing the [parolee]

into the presence of his judge.’” Additionally, the Seventh Circuit referenced the statutory language of other Federal Rules of Criminal Procedure that explicitly allow for the use of videoconferencing.

The court reasoned that, since video-conferencing is permitted only with stated exceptions in the rules, the use of the technology “is the exception to the rule, not the default rule itself,” and that Rule 32.1’s “opportunity to appear,” therefore, excludes appearance by video-conference.

During its interpretation of the opportunity to appear, the court also examined the statutory rights owed to a defendant at a revocation hearing. Rule 32.1 provides, in pertinent part, that:

The person is entitled to: . . . (C) an opportunity to appear, present

evidence, and question any adverse witness . . . ; [and] (D) notice of the

person’s right to retain counsel or to request that counsel be appointed if

the person cannot obtain counsel . . . .

After determining that the opportunity to appear requires a parolee to come into the physical presence of the judge, the court furthered its statutory analysis by noting that this right is not isolated, but instead exists in conjunction with the right to “present evidence,” to “question

any adverse witness,” and to “make a statement and present any evidence in mitigation. Appearance in court is “the means by which the petitioner effectuates the other rights conferred” by Rule 32.1.

The conjunctive force of a defendant’s opportunity to appear is particularly important to the defendant’s right to “make a statement and present any information in mitigation” because “appearing before the court allows the [parolee] to plead his case personally to the [deciding]

judge.”

This right, known as the right of allocution, “ensures that the defendant has the opportunity to ‘personally address the court’ before punishment is imposed.” Without the physical meeting, the court reasoned, the judge could not experience the impressions of any personal confrontation wherein he or she attempts to assess the parolee’s credibility or to evaluate the defendant’s true moral fiber. Consequently, without the personal, physical interaction between a judge and a parolee, the force of the parolee’s other rights guaranteed by Rule 32.1 is diminished.

Finally, after determining that the judge’s participation by videoconferencing in Thompson’s revocation hearing violated Rule 32.1, the court vacated Thompson’s term of re-imprisonment and

remanded. The court resolved the second issue, whether video-conferencing violated Thompson’s due process rights, in a one-sentence footnote: “Because we hold that the judge’s participation by

video-conference violated Rule 32.1, we need not address Thompson’s argument that holding the hearing by video-conference violated the Fifth Amendment’s Due Process Clause.”

The Court then turned its analysis to the nature of the process that is due a parolee at a revocation hearing, wherein it laid out the minimum requirements of due process. Accordingly, a parolee must have an opportunity to be heard and to show either that he or she did not violate the conditions of release or, alternatively, that there are mitigating circumstances.

Further, the Court held that the minimum requirements of due process include, in pertinent part, the “(c) opportunity to be heard in person and to present witnesses and documentary evidence; [and] (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation).

Defense counsel suffers a multitude of communication challenges when not in the presence of the judge or the courtroom. Anne Bowen Poulin, a law professor at the Villanova University School of Law, stressed in her discussion of the use of videoconferencing technology that “[t]he attorney will be unable to gauge the emotional interactions and mood of the courtroom as effectively to determine when and how to intervene on the client’s behalf.”She also examined various studies

that suggest that alliances form among those who are in the same physical location—alliances against those who appear via video-conference.In the case where neither the parolee nor counsel is physically present at the revocation hearing, the effectiveness of counsel is even more imperiled. The court in Thompson, although faced with the opposite situation in which the judge appeared by video-conference, foresaw this consequence and determined that “[t]he important point is that the

form and substantive quality of the hearing is altered when a key participant is absent from the hearing room, even if he is participating by virtue of a cable or satellite link.” The physical separation of a parolee from counsel inevitably takes its toll on the effectiveness of the counsel, and this effect is most strongly felt by the communication between them. Some courts have tried to curb this problem by providing telephone lines that allow for privileged communication.

However, this practice still cannot replace the quality of the attorney–client relationship created by in-person interaction.

According to Poulin, the human interactions that foster the relationship are muted by the technology, which detracts from the defendant’s experience. Likewise, counsel cannot gauge the defendant’s mental and emotional state, and neither party can use nonverbal cues to communicate with each other during a proceeding, both of which are necessary to effective communication. Despite the surplus of communication problems caused by the use of

video-conferencing technology, Poulin believes that these adversities will not rise to the level of ineffective assistance of counsel in the eyes of the courts.

However, effective communication is so integral to the role of counsel, and counsel’s ability to effectively assist a client, that it is likely to be a key consideration when a court determines whether the right to effective assistance of counsel has been violated by the use of videoconferencing technology at a revocation hearing. In fact, at least one court has recognized that the use of technology to physically exclude a parolee from the courtroom, as well as from counsel, violates the right to counsel because of the detrimental effect it has on communication.

In Schiffer v. State, the District Court of Appeal of Florida heard an appeal from a revocation hearing and a subsequent sentencing hearing in which the parolee participated via

video/audio arrangement. The court found that, because the parolee had no means by which to access and to communicate privately with his counsel, his right to counsel was “obliterated.” The court held that “[w]e can imagine no more fettered and ineffective consultation and communication between an accused and his lawyer than to do so by television in front of a crowded courtroom with the prosecutor and judge able to hear the exchange.

The use of videoconferencing technology in revocation hearings also violates the parolee’s due process right to confront adverse witnesses.

As with the right to effective assistance of counsel, the parolee’s due process right “to be heard in person”works in conjunction with the due process right to confront adverse witnesses. Without the parolee’s physical presence, there is no effective right to confront adverse witnesses that satisfies the minimum requirements of due process. The Ninth Circuit addressed this issue in

White v. White when it considered whether a bar to the presence of an adverse witness at a

parole revocation hearing violated due process.

The court held that “[w]here the facts are contested, the presence of adverse witnesses, absent good cause for their nonappearance, is necessary to enable the parole board to make accurate

findings.” Therefore, without good cause, the appearance or the presence of adverse witnesses is necessary.

A parolee has a strong interest in the right to confront adverse witnesses at a revocation hearing, a proceeding at which the parolee’s liberty is at stake. The parolee, who will either want to argue innocence or prove factors in mitigation, cannot effectively exercise a right of confrontation when appearing via vide-oconference, away from the physical presence of the adverse witnesses. Like in Wilkinson, a parolee who can observe witnesses only on screen will not be able to observe

their demeanor and properly ascertain the accuracy and reliability of their proffered evidence, evidence that is often determinative of the parolee’s fate.

Therefore, given the strength of a Claimant’s due process right of confrontation, and the insufficiency, or even the complete absence of good cause by the government, a Claimant should be able to successfully demonstrate that the use of vide-oconferencing technology

to exclude the Claimant from being physically present in the same Hearing Room as the ALJ and other witnesses violates the Claimant’s due process right to confront adverse witnesses.

Categories: Social Security Cases | Tags: Administrative law judge, Social Security Administration, Social Security Disability Insurance, socialNsecurity, Supplemental Security Income, Supreme Court | 3 Comments

How To Fix The Social Security Courts

Posted on January 20, 2014 by Judge London Steverson

Fixing Disability Courts

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)

Categories: Social Security Cases | Tags: Administrative law judge, Judge London Steverson, Social Security Administration, Social Security Disability Insurance, socialNsecurity | 3 Comments

More Disability Claimants Forced To File In Federal Court

Posted on December 1, 2013 by Judge London Steverson

Social Security Disability Approvals Decline

Attorney John Bednarz thought he had a clear-cut case to win Social Security disability benefits (SSID) for his client.

The 39-year-old man had Huntington’s disease, a debilitating and often fatal disorder that caused tremors in his hands, left him off-balance and suffering from frequent bouts of confusion.

An employee at the Social Security Administration (SSA), State Disability Determination Service (DDS) didn’t see it that way, however, and denied the initial claim twice. Mr. Bednarz appealed the case to an administrative law judge (ALJ), who upheld the Agency’s decision.

Ultimately his client prevailed after Mr. Bednarz filed an appeal in Federal District Court. It was a long struggle that took far more time than it should have, he said.

“This case is one that really got me,” Mr. Bednarz said. “He had a degenerative neurological impairment. He had involuntary movement in his right hand and symptoms of dementia. â€¦ A diagnosis like this is essentially a death sentence.”

His client is not alone in his struggle.

Administrative law judges (ALJ) who hear cases for the Social Security Administration’s Office of Disability Adjudication and Review (ODAR) have become more selective in the cases they approve, data show, forcing an increasing number of claimants to file suit in federal court.

In the Wilkes-Barre ODAR, the percentage of cases approved has steadily declined the past three years, mirroring a nationwide trend.

Appeals spike.

In fiscal 2010, the office granted 64 percent of the cases. That dropped to 54 percent in 2011, 48 percent in 2012 and 47 percent in 2013, according to data compiled by Social Security. Statewide, 42 percent of cases were approved at the administrative law judge level in 2013.

The increase in denials has led to a huge spike in appeals filed in federal court for the Middle District of Pennsylvania, a review of the court docket shows. As of Nov. 22, 204 appeals were filed, compared to 117 in all of 2012, a 74 percent increase. That compares to 90 appeals in 2011 and 113 in 2010.

Officials with SSA say the higher denial rate is partly attributable to an increase in filings due to the poor economy, which historically leads more people with marginal disabilities to seek benefits.

Several attorneys who represent claimants agree economic factors may have played a role. But they’re concerned the system has become increasingly stacked against claimants due, in part, to the SSA’s propensity to hire judges who formerly worked for Social Security. There is also concern judges are being subjected to outside pressure that may make them more prone to deny cases.

“I’m not saying everyone is perfectly honest and that there is not fraud, but we see a lot of cases being denied that appear legitimate,” said Steven Rollins, a Harrisburg attorney who specializes in disability claims. “You have more of a shift of judges who have become more in tune to affirm a denial and are less willing to grant cases.”

Unable to engage.

In 2013, the Social Security Disability system paid 8.9 million workers an average monthly benefit of $1,129 at a total cost of $10 billion, according to the agency. To qualify, claimants must prove they are unable to engage “any substantial gainful activity” due to a mental or physical impairment which has lasted 12 months, is expected last 12 months or will result in death.

The initial determination is made by the State DDS based solely on a review of medical records, attorneys said. Roughly 25 to 35 percent of claimants are approved at that level, Mr. Rollins said. If denied, the case goes before an ALJ – an attorney hired through Social Security to conduct an independent review. The judge can hold a hearing that includes testimony from the claimant and physicians.

The are currently 1,500 ALJs in the nation. In Pennsylvania, judges preside in Wilkes-Barre, Harrisburg and Philadelphia.

If the ALJ denies the claim, it goes to the Appeals Council within Social Security. The final step is federal court. A judge will review the entire record and has the power to award benefits or return the case to the ALJ for further review.

Few data.

There are no national statics on the percentage of cases remanded. A review of the federal court docket in the Middle District of Pennsylvania shows that of the 90 appeals filed in 2011, the last year for which full data are available, 56 were either affirmed, dismissed or withdrawn by the plaintiffs. Most of the cases filed in 2012 and 2013 remain pending.

Mark Hinkle, a spokesman for SSA, said there is always a debate over whether the agency approves or disapproves too many cases. The agency does not seek to influence ALJs, who have complete independence.

“Our judges have qualified decisional independence to enhance public confidence in the fairness of our process, to protect people applying for disability, and to ensure that they issue decisions free from pressure to reach a particular result,” he said in an email.

As for the overall decline in approval rates, Mr. Hinkle said the agency believes several factors have played a role.

“We have seen an increase in the number of disability cases based on the aging of the baby boom generation and the economy, and when this occurs it is expected that the approval rate will decrease when the number of applications increase,” Mr. Hinkle said.

Jonathan Stein, an attorney with Community Legal Services in Philadelphia, said he believes the decrease in ALJ approvals is partly tied to a change in the make up of judges hired to review the cases.

Under pressure to speed up review of cases, the SSA hired an additional 500 ALJs within the past three years. Mr. Stein said. A large percentage of those attorneys previously worked for SSA, Mr. Stein said.

ALJs are supposed to issue rulings based solely on the evidence. Mr. Stein said he can’t help but question whether their experience with the agency may influence how they view cases.

“When you are a judge you must be independent. You follow SSA rules and have to make independent decisions,” he said. “The reality is, when you spent most of your life in the system, it will shape your views.”

Charles Hall, an attorney from North Carolina who writes a blog about Social Security issues, said there is also concern that the changing political climate toward entitlement programs and media stories that have focused on judges who have high approval ratings may be unduly influencing judges.

Sick or bums?

“There is a great deal of public sympathy for people who are sick or disabled. On the other side here are people who say (recipients) are lazy bums who ought to get back to work,” Mr. Hall said. “Judges are human beings. The same things that affect the rest of us affects them.”

Mr. Hall said SSAy may have unintentionally influencedALJs by publicly posting data on the percentage of cases they approve. If a judge’s rulings are out of whack with others within his or her region, that could play on their minds, he said.

The data, which are available on SSA’s website, show approval rates vary significantly among judges. In Pennsylvania, Judge Craig De Bernardis in Wilkes-Barre and Judge Christopher Bridges in Harrisburg had some of the highest approval rates between 2010 and 2013, data show. Judge De Bernardis approved 97 percent of his cases in 2010 and 96 percent in 2011, the two years he served. Judge Bridges’ approval rating varied from 90 to 96 percent between 2010 and 2013.

Highest rate

The highest approval rating in the Wilkes-Barre office in 2013 belonged to Judge Eugene Brady, who approved 56 percent of cases. On the other end of the spectrum are Judge Michelle Wolfe, who approved 34 percent of the cases, and Judge Therese Hardiman, who approved 38 percent of her cases.

Several judges in Wilkes-Barre also saw significant drops in their approval percentages since 2010. The most notable change is Judge Hardiman. In 2010, she approved 73 percent of the cases she heard. That dropped to just 38 percent in 2013.

Mr. Rollins said he’s also concerned news media stories that focused on abuses within the system and judges who award a high percentage of cases may influence decisions.

He noted coverage of a recent Senate investigation that raised questions of whether a West Virginia judge had colluded with an attorney to approve an inordinate number of the attorney’s cases.

The investigation, led by Sen. Tom Coburn of Oklahoma, revealed Judge David Daugherty, who no longer hears cases, approved 1,375 of cases filed by attorney Eric Conn, denying only four.

“Judges are not immune to publicity,” Mr. Rollins said. “I suspect if I’m in their position, I’m looking over my shoulder if others are being investigated and I’m seeing stories about too many allowances.”

While they have concerns about the system, Mr. Rollins stressed he believes the majority of judges try to be fair. The cases they review are rarely clear cut, he said, and require analysis of hundreds of pages of medical records.

“I think, by and large, they do the right thing,” Mr. Rollins said.

Mr. Bednarz, the attorney for the Wilkes-Barre man with Huntington’s disease, said he also feels most judges do the best they can. He fears legitimate cases are being lost, however, because many claimants don’t have attorneys to represent them.

Attorneys are only paid in disability cases if they obtain benefits for their client. Because the cases are so difficult, attorneys have become increasingly selective about which cases they will take, he said. That means some marginal cases that may have merit fall by the wayside.

“It is much more difficult than it has ever been being a social security practitioner,” he said.

(Morgan-Besecker, T.; Times Tribune, Scranton,PA, Dec 1, 2013)

Categories: Social Security Cases | Tags: Administrative law judge, ALJ, Mark Hinkle, Social Security, Social Security Administration, social security disability, Social Security Disability Insurance, socialNsecurity, SSA | 1 Comment