Posts Tagged With: Administrative law judge

SSA Judges In NYC Found Guilty Of Bias. 4,000 Disability Claimants Offered New Hearings

New hearings for SS claimants who received unfavorable decisions by ALJs.

A court has approved a settlement agreement in a class action lawsuit involving Social Security Disability claimants in the State of New York. The agreement will provide claimants with new hearings.

January 24, 2014 – A settlement agreement has been reached and approved by the court in a class action lawsuit involving Social Security Disability claimants in the State of New York. Among the different types of relief stipulated in the agreement, claimants are to receive fresh hearings in front of new Administrative Law Judges, or ALJs.

(The specifics of the lawsuit)

 In 2011, various Social Security Disability applicants who sought disability benefits received unfavorable or partially favorable judgements by one of five ALJs from the Queens, New York Office of Disability Adjudication and Review (SSA/ODAR).

The claimants argued that the rulings were biased.

 In April 2011, they filed a lawsuit against the Social Security Administration. The case was later filed as a class action and expanded to include approximately 4,000 total Social Security Disability claimants.

 Attorneys for both sides worked toward a resolution throughout the various months thereafter. (Settlement approved)

A settlement agreement was officially approved by the United States District Court for the Eastern District of New York. The approval came after written comments provided to the court as well as information obtained from the settlement hearings, among other evidence, were reviewed.

The Settlement Agreement includes individual, retrospective and prospective relief for claimants, new training and mentoring for ALJs, and a new Social Security Ruling, or SSR.

(New hearings for class members)

 In more specific terms, the Settlement Agreement stipulates that all eligible claimants, those who received unfavorable or partially favorable decisions from one of the named ALJ, defendant judges during the period stipulated in the complaint, will receive new hearings. The Social Security Administration indicates plans to send out notices to each claimant by the end of next month. Eligible claimants are provided 60 days to request a new hearing once their notices are received.

(Other settlement stipulations)

 The Settlement also stipulates that an automatic review will be conducted by the SSA’s Appeals Council (A/C)for any new claimants who receive unfavorable decisions (those that commenced October 2013 and for 30 months thereafter) by any one of the five ALJs named in the recent lawsuit. If the A/C determines any unfavorable decisions are legally insufficient, the claimant will automatically receive a fresh hearing in front of a new ALJ.

Under the agreement, the SSA will also provide additional training and mentorship to all ALJs to help them improve the ways they handle and conduct Social Security Disability hearings in the future. Additionally, the settlement stipulates a new Social Security Ruling that details new procedures on how to address allegations of “unfair ALJ hearings, ALJ bias, and ALJ misconduct.”

( Article provided by The Klein Law Group, P.C., at www.thekleinlawgroup.com)

NYC Social Security Disability Attorneys.

The Klein Law Group, P.C., fights for the rights of those who have been hurt at work or are unable to qualify for disability pay.

Practicing solely in New York state, with lawyers are highly knowledgeable in the area of New York workers’ compensation law, as well as the complex workings of the federal Social Security Administration.

The Klein Law Group, P.C., can confidently take your case at any stage, from initial application through final appeal before the Workers’ Compensation Board. In the rare event that you do not receive benefits, you pay no attorney’s fees.

The Klein Law Group, P.C., offers free consultations to discuss your rights and review your case. Contact us to arrange a consultation with one of our experienced New York workers’ comp attorneys.

Our international staff speaks Polish, Spanish, Chinese (Mandarin and Cantonese) and Russian.

 

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Categories: Social Security Judges | Tags: , , , , , , , , | 4 Comments

How To Fix The Social Security Courts

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: , , , , | 3 Comments

More Disability Claimants Forced To File In Federal Court

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. … 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.

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

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)

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Social Security Judge Reversed By Ninth Circuit Court Of Appeals

2013 at 11:25 PM Deletedelete  Overlays edit   Comments comments (0)

Social Security ALJ Reversed By Ninth Circuit Court of Appeals

(CN) – A woman with multiple sclerosis who was improperly denied Social Security benefits cannot recover attorneys’ fees, the 9th Circuit ruled Tuesday.

In denying benefits to Jill Campbell, an administrative law judge, or ALJ, concluded that she failed to demonstrate that she was disabled because of multiple sclerosisas of June 30, 1996, the last date she was insured.

A unanimous three-judge panel of the 9th Circuit later concluded that this holding was in error, and Campbell moved for attorneys’ fees.

This time, a divided panel sided with Social Security Commissioner Michael Astrue.

“In this case, the ALJ had to determine whether Campbell’s multiple sclerosis rendered her disabled by June 30, 1996,” the unsigned decision states. “The ALJ did not have any records from 1996 to examine. Instead, the ALJ had medical records from 1989 and 2000. The ALJ also had to consider circumstantial evidence that Campbell cared for her children and worked during that time, which justified doubts that Campbell was fully disabled. While the ALJ erred in her determination, the fact that she was trying to extrapolate what Campbell’s injury may have been in 1996 from other evidence regarding a disease which may worsen at varying rates leads this court to conclude that the ALJ’s decision was ‘substantially justified.'”

Campbell cannot collect attorneys’ fees but is entitled to recover $805 in filing costs, according to the Tuesday ruling.

Judge Kim Wardlaw dissented from the opinion, arguing that her colleagues had misinterpreted the Equal Access to Justice Act.

The dissent cites Campbell’s testimony to the ALJ her symptoms generally progressed between 1995 and 1996 with several periods where she found it difficult to get out of bed. Cambell testified that she was sometimes forced to crawl to the bathroom or scoot on her butt to descend stairs.

Wardlaw emphasized that the ALJ discounted Campbell’s testimony despite the fact that “not a single physician contradicted Campbell’s description of her disability as of her last date insured.” (Emphasis in original.)

“The commissioner was not ‘substantially justified’ in failing to apply the clearly established law that compelled the result we reached in this case,” Wardlaw added. “Nor was the government justified in defending the agency’s erroneous decision through multiple stages of litigation at taxpayer expense.”

Citing precedent, Wardlaw said that “neither Campbell nor her attorney should be made to bear the burden of the ALJ’s egregious error, and the government’s zealous defense of it. Congress enacted the EAJA to prevent precisely such outcomes

http://www.courthousenews.com/2013/11/26/astrue.pdf

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socialNsecurity From Alpha to Omega

CHAPTER 2

c22f8-courtgavel-758498

    Cases From Start To Finish

  

It is rare that a decision of an ALJ is affirmed by the SSA’s Appeals Council. It is even rarer still when the SSA will take a case to the District Court and fight to support the decision of the ALJ. And it is practically unheard of for the SSA to defend the decision of an ALJ at the Circuit Court level. When that happens there is reason to celebrate. I was fortunate enough to experience this rare series of fortuitous events on several occasions in almost 20 years as an ALJ. When a case follows that complete path to a final Agency Decision, it is profitable for instruction and as an illustration. The average claimant will not have to travel this entire journey to a grant of benefits.

Here is a CIRCUIT COURT CASE AS AN EXAMPLE:

Let’s take the case of Jack Smith*[1], a resident of Los Angeles, California who applied for disability insurance benefits (DIB) and Supplemental Security Income (SSI) benefits in October 1992. Claiming an on the job back injury on February 14, 1989, from lifting 75 pounds of metal castings, he filed applications for disability insurance benefits (DIB) and SSI benefits on October 28, 1992. Smith alleged that he had become unable to work since his date last worked (DLW) of March 9, 1989 due to severe pain in his back, legs, neck and head. As a result, he had allegedly also suffered a severe mental impairment, specifically anxiety, depression and alcohol abuse. His Alleged Onset Date (AOD) is March 9, 1989.

His claim was initially denied by the California State Disability Determination Service (DDS). He requested a reconsideration of the DDS denial and was again denied benefits.

He appealed the Reconsideration denial and was given a hearing before Administrative Law Judge (ALJ) London Steverson at the Downey OHA on February 18, 1993. The Social Security hearing is considered a federal hearing. Mr. Smith appeared before the judge alone (that means this was a bench trial and there was no jury present). The Government was not represented. He was represented by his own personal attorney, a member of the California Bar in good standing.

Mr. Smith was initially treated with chiropractic care and physical therapy. On March 27, 1989, a Magnetic Resonance Imaging (MRI) test revealed moderately severe central disc herniations at L4-5 and at L5-S1 of the lumbar spine. After experiencing numbness and further pain, Mr. Smith sought treatment from Dr. Omar Epps, a neurosurgeon. In July 1989, these symptoms abated and Mr. Smith received physical therapy for lower back problems until August 1989. Surgery scheduled for November 11, 1989 was cancelled. Mr. Smith continued to improve until a slip and fall accident in a grocery store on December 19, 1989. After reporting some improvement, he declined acupuncture treatment in January 1990. On February 22, 1990, Dr. Epps determined that Mr. Smith’s condition was permanent and stationary, but that he had shown marked improvement in both subjective assessment and objective findings. Dr. Epps concluded that Mr. Smith could perform only light work that did not involve prolonged standing or sitting. Light work involves lifting a maximum of 25 pounds occasionally and 10 pounds frequently.

On August 20, 1991, a California state ALJ found Mr. Smith disabled and eligible for Medi-Cal benefits.

After an auto accident on March 10, 1992, Mr. Smith was treated by Dr. Charlie Luke for headache and back and neck pain. On April 29, 1992, the Los Angeles County and University of Southern California (LAC/USC) Medical Center Emergency Room treated him for chronic back pain. About June 1992, Dr. Luke reported that Mr. Smith had improved sufficiently to discontinue treatment.

On July 25, 1992, Dr. Sammy Kumar reported that Mr. Smith was receiving psychotherapy for depression and anxiety.

Mr. Smith again received treatment at the LAC/USC center from August 5, 1992 to February 10, 1993. From November 1992 to January 1993, he reported pain relief due to epidural blocks. In February 1993, Mr. Smith’s treating physician reported that he had no disability. The opinion of a treating physician is entitled to controlling weight.

At the hearing before ALJ Steverson, Mr. Smith testified that his daily routine included reading law, history and other types of books for six hours, and that he watched television for three and a half hours, spent considerable time talking on the phone to friends, cleaned up around the apartment and was able to do his laundry and drive a car. Mr. Smith also testified that he could lift under 20 pounds, walk up and down stairs and play a musical instrument.

 (Standard of Review In The Ninth Circuit.)

A district court’s order affirming a Social Security Commissioner’s denial of benefits is reviewed by the circuit court de novo. (Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir.1996)). The decision by the Commissioner must be upheld, however, if it is supported by substantial evidence and the Commissioner correctly applied the law. (Smolen, 80 F.3d at 1279; Flaten v. Secretary, 44 F.3d 1453, 1457 (9th Cir.1995)). Substantial evidence is more than a mere scintilla, but less than a preponderance. (Matney ex rel. Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir.1992)). The ALJ cannot discount a claim of excess pain without making specific findings supporting that decision. (Johnson v. Shalala, 60 F.3d 1428, 1433 (9th Cir.1996))

Fortunately, the Standard of Review is the same in all Federal Circuits. A quick glance at the standard in the Sixth Circuit will serve as an illustration.

(Standard of Review In The Sixth Circuit)

The District Court exercises de novo review of district court decisions in Social Security disability cases. White v. Comm’r of Soc. Sec., 572 F.3d 272, 281 (6th Cir.2009); Lindsley v. Comm’r of Soc. Sec., 560 F.3d 601, 604 (6th Cir.2009). The Social Security Commissioner’s conclusion will be affirmed absent a determination that the ALJ failed to apply the correct legal standard or made fact findings unsupported by substantial evidence in the record. White, 572 F.3d at 281 (citing 42 U.S.C. § 405(g)). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Lindsley, 560 F.3d at 604 (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)); see also Walker v. Sec’y of Health and Human Services, 980 F.2d 1066, 1070 (6th Cir.1992); McGlothin v. Comm’r of Soc. Sec., 299 Fed. Appx. 516, 522 (6th Cir.2008) (noting that substantial evidence is “more than a scintilla of evidence but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”) (internal quotations omitted).

In deciding whether to affirm the Commissioner’s decision, “it is not necessary that the District Court agree with the Commissioner’s finding, as long as it is substantially supported in the record.” Beinlich v. Comm’r of Soc. Sec., 345 Fed.Appx. 163, 167 (6th Cir.2009). Even if the District Court might have reached a contrary conclusion of fact, the Commissioner’s decision must be affirmed so long as it is supported by substantial evidence. Lindsley, 560 F .3d at 604-05 (administrative findings are not subject to reversal merely because substantial evidence exists in the record to support a different conclusion) (quoting Felisky v. Bowen, 35 F.3d 1027, 1035 (6th Cir.1994)); Roe v. Apfel, 211 F.3d 1270, at *7 (6th Cir. April 25, 2000) (unpublished table decision).

 Mr. Smith claimed that the ALJ based his decision that he was not disabled on five incorrect or inadequate reasons.

First, he contends that the ALJ failed to explain why Mr. Smith failed to equal, even if he did not meet, section 1.05 of the Listing of Impairments (the Listings). (Marcia v. Sullivan, 900 F.2d 172, 176 (9th Cir.1990)). The ALJ has a duty to make this determination 20 C.F.R. § 416.920(d).

The Ninth Circuit Court found the ALJ’s  explanation sufficient. The degenerative disc disease of the claimant’s spine, and most particularly the herniated disc shown on MRI studies in August 1990 and in August 1992, did not meet or equal the requisite level of severity of section 1.05(c) of the Listing of Impairments inasmuch as a pain syndrome requiring ongoing treatment for back pain is not shown, and as there had been no dermatomal neurological deficits on clinical examination.

Second: Mr. Smith claimed that the ALJ failed to give any reason for rejecting Dr. Epps’s finding that he is restricted from prolonged sitting in violation of the rule that evidence cannot be rejected without any reason. Cotter v. Harris, 642 F.2d 700, 706 (3d Cir.1981). The ALJ does provide a reason, however, for not accepting that particular finding: “The claimant’s refusal of back surgery and his refusal of even acupuncture treatment reflects a lack of motivation to improve and return to work.”

Third:  Mr. Smith contended that the ALJ incorrectly found that his claims of pain were contradicted by Dr. Luke’s medical findings and statements made to Dr. Luke by Mr. Smith. There is substantial evidence for the ALJ’s finding.

Fourth: Also Mr. Smith maintained that the ALJ incorrectly found that records of the LAC/USC Medical Center indicated that he was not disabled. There was substantial evidence for the ALJ’s finding.

Fifth: Mr. Smith argued that the ALJ incorrectly found a number of inconsistencies in his complaints about continuing and excruciating pain. ” ‘The ALJ is responsible for determining credibility and resolving conflicts in medical testimony.’ “( Saelee v. Chater, 94 F.3d 520, 522 (9th Cir.1996)) (quoting Magallanes v. Bowen, 881 F.2d 747, 752 (9th Cir.1989)). In addition to the deference accorded the ALJ’s findings of credibility, there was substantial evidence for the ALJ’s finding.

Mr. Smith’s claim that sufficient evidence existed as to his nonexertional limitations, mental impairment and severe pain, so as to make the ALJ’s application of the grids inappropriate was not persuasive. The use of the grids can be appropriate even when a claimant alleges both exertional limitations and nonexertional limitations. ( Bates v. Sullivan, 894 F.2d 1059, 1063 (9th Cir.1990)) , overruled on other grounds,( Bunnell v. Sullivan, 947 F.2d 341, 342 (9th Cir.1991)) (en banc). The ALJ properly applied the grids to Mr. Smith since the ALJ found that the alleged pain did not significantly detract from his exertional capabilities.  Though the ALJ failed to consider whether mental impairment significantly detracted from his exertional capabilities, evidence of mental impairment was not properly submitted to the ALJ. Though Mr. Smith maintained that there were numerous references in the record to his mental impairment, he failed to claim a significant mental impairment in his benefits application, failed to submit a medical or psychological report that such impairment was sufficiently serious to limit work activities, failed to raise it at the hearing, and failed to raise it before the Appeals Council. Mr. Smith’s argument that the mentally impaired frequently do not realize that they are impaired as such and thus he should not be penalized for failing to raise the issue was undermined by his attorney also not raising the issue before the Appeals Council. Since Mr. Smith’s claim of mental impairment, as a basis for his claim that the ALJ improperly applied the grids, was untimely, therefore the Circuit Court declined to consider it in ascertaining whether the ALJ erred in applying the grids. (Avol v. Secretary of HHS, 883 F.2d 659, 661 (9th Cir.1989))

With respect to Mr. Smith’s alleged nonexertional limitation of pain, the ALJ had substantial evidence to support its determination that Mr. Smith’s claims of severe and excruciating pain were not sufficiently severe to detract from his exertional capabilities. (See Bates, 894 F.2d at 1063; Perminter v. Heckler, 765 F.2d 870, 872 (9th Cir.1985)) (grids inapplicable only if evidence shows that pain prevents claimant from working at any job). There was also substantial evidence to warrant the ALJ’s finding that the medical evidence was insufficient and that Mr. Smith’s subjective assessment was not credible. Since the ALJ made specific reference as to why Mr. Smith’s claims of pain were not entirely credible and the ALJ did not make his finding based on medical evidence alone, there was substantial evidence to support that the ALJ’s finding of lack of credibility was proper. (Bates, supra at 1062-63.)

Mr. Smith claimed that the ALJ did not obtain a valid waiver of his right to counsel. Relying on Binion v. Shalala, 13 F.3d 243, 245 (7th Cir.1994), he argued that in order for his waiver to be valid the ALJ should have advised him how an attorney could be of aid, the possibility of a contingency arrangement, limitations on attorney fees and the requirement of court approval of fees. In addition to the above requirements not being controlling for the Ninth Circuit Court, it has been well established that a claimant has to make a showing of the resulting prejudice or unfairness stemming from lack of counsel. (Key v. Heckler, 754 F.2d 1545, 1551 (9th Cir.1985)); Hall v. Secretary of Health, Ed. and Welfare, 602 F.2d 1372, 1378 (9th Cir.1979). Mr. Smith neither established the requisite resulting prejudice nor even argued that any resulting prejudice stemmed from his lack of counsel.

Mr. Smith’s claim that the ALJ failed to meet its heavier burden when the claimant is without counsel to “scrupulously and conscientiously probe into, inquire of and explore for all relevant facts,” Vidal v. Harris, 637 F.2d 710, 713 (9th Cir.1981), was not persuasive. When the ALJ fails to meet his or her heavier burden for a claimant without counsel, remand is appropriate. Id. at 715. Considering that evidence of mental impairment (including alcohol abuse, anxiety and depression) was not fully raised by Mr. Smith before the ALJ, the ALJ satisfactorily met his heavier burden to explore all relevant facts under Vidal. Though the ALJ failed to obtain medical reports mentioned in state ALJ Hall’s decision, whether such reports should have been considered was within the sound discretion of the ALJ. Wilson v. Heckler, 761 F.2d 1383, 1385 (9th Cir.1985). Without a showing from Mr. Smith that the ALJ abused his discretion, the Circuit Court would not upset the ALJ’s discretionary judgment.

Mr. Smith argued that the ALJ failed to give due consideration to state ALJ Hall’s ruling that he was disabled. The ALJ must explain why significant and probative evidence has been rejected. Vincent v. Heckler, 739 F.2d 1393, 1395 (9th Cir.1984). The determinations of another agency, however, are not binding on the Social Security Commissioner and in his or her discretion may give it much or little weight. Wilson, 761 F.2d at 1385.

Mr. Smith’s reliance on Allen v. Heckler, 749 F.2d 577, 579 (9th Cir.1984) (a prior determination of disability gives rise to a presumption of disability requiring the government to show that a claimant has improved in order to deny benefits), is misplaced. Allen, unlike the instant case, involved a prior determination by the same agency and in order to terminate benefits the government had to show that the claimant had improved. Id.

Substantial evidence exists to support the ALJ’s finding that Mr. Smith can perform a full range of sedentary work. Mr. Smith’s reliance on Delgado v. Heckler, 722 F.2d 570, 574 (9th Cir.1983) (“A man who cannot walk, stand or sit for over one hour does not have the capacity to do most jobs available in the national economy.”) for his claim that he cannot perform sedentary work is not persuasive. Mr. Smith only claims that he cannot sit for prolonged periods, he does not fix a particular duration as to how long that he can or cannot sit. Based not only on objective medical evidence but also on Mr. Smith’s description of his daily activities of prolonged reading, watching TV, talking on the telephone etc., and his lack of credibility regarding his claims of severe pain, substantial evidence exists that Mr. Smith can perform sedentary work. Even Dr. Espinosa, the physician whose determinations and diagnoses Mr. Smith principally relies on, opined that Makshanoff could perform light work.

Mr. Smith claims that the ALJ’s four cited reasons for concluding that his testimony regarding severe pain was not credible is not based on substantial evidence. Despite Mr. Smith’s arguments, there is substantial evidence to support the ALJ’s finding that since his medical records show significant improvement in his experiences of pain, his claims of no significant relief from pain are not credible.

 Mr. Smith’s argument that substantial evidence does not exist to support the ALJ’s second finding that Mr. Smith’s refusal of surgery “reflects a lack of motivation to improve and return to work,” ER at 8, is not entirely persuasive. Although failure to seek medical treatment cannot be used to infer a lack of credibility of the claimant regarding his or her experience of pain, Penny v. Sullivan, 2 F.3d 953, 958 (9th Cir.1993), the unexplained absence of treatment for pain may be used to impeach credibility. Orteza v. Shalala, 50 F.3d 748, 750-51 (9th Cir.1995). While Mr. Smith’s present explanations for the absence of treatment for his pain may be compelling, the explanations were not offered to the ALJ at the hearing. The ALJ’s determination was supported by substantial evidence.

 Substantial evidence supports the ALJ’s third finding that Dr. Luke’s medical records show Mr. Smith’s significant improvement and Mr. Smith’s statement to Dr. Luke that he felt well undermine Mr. Smith’s allegation of continuing severe pain.

 The ALJ’s fourth finding that physicians rejected Mr. Smith as a suitable candidate for surgery because his claimed back pain failed to match any anatomical distribution is also supported by substantial evidence. Mr. Smith’s argument that allegations of pain cannot be discredited solely on the basis of a lack of objective medical evidence, Penny, 2 F.3d at 957, is not persuasive. The ALJ discredits the pain allegations not merely from objective medical evidence but also from statements made by Mr. Smith about his daily routine. Doing laundry, reading law and history for at least 6 hours a day, playing a musical instrument, watching television and talking on the telephone with friends is incompatible with the pain that Mr. Smith claims. See Fair v. Bowen, 885 F.2d 597, 604 (1989); Orteza, 50 F.3d at 750-51.

 Mr. Smith also claims that if the ALJ noted the disparity between the objective medical evidence and his allegations of severe pain “the possibility of a mental impairment as the basis for the pain should have been investigated.” Bunnell, 947 F.2d at 343. Since the ALJ did not consider the possibility of mental impairment, Mr. Smith argues, the ALJ’s determination is legally deficient. The ALJ’s findings that Mr. Smith’s pain allegations were not credible, his refusal to seek treatment, and his lack of motivation to improve and return to work, however, support an inference that the ALJ found Mr. Smith’s pain allegations to be exaggerated so as to obtain benefits and not work which would foreclose the necessity of considering mental impairment. See Saelee, 94 F.3d at 522.

 Mr. Smith contends that the magistrate, in adopting the ALJ’s incorrect findings, committed three abuses of discretion. First, Mr. Smith argues the magistrate erroneously found that the ALJ properly developed the record since the magistrate found that there was no reason for the ALJ to inquire into a mental impairment. As discussed in the analysis to issue III, the ALJ satisfactorily met his heavier burden, under the Vidal standard, to develop a full record.

 Second, Mr. Smith claims the magistrate incorrectly agreed with the ALJ that Mr. Smith did not meet section 1.05 of the listings without considering whether he equaled the listings. As discussed in the analysis of issue I, there is substantial evidence that the ALJ fully considered, under Marcia, whether Mr. Smith equaled, even if he did not meet, the Medical Listings of Impairments.

 Third, Mr. Smith asserts that the magistrate erroneously accepted the ALJ’s determination to reject Dr. Espinosa’s opinion that Mr. Smith was precluded from prolonged sitting. As discussed in the analysis of issue I, given the substantial evidence regarding Mr. Smith’s daily activities and his unwillingness to seek treatment, the magistrate properly accepted the ALJ’s determination.

CONCLUSION

We AFFIRM the district court’s grant of summary judgment in favor of Shirley S. Chater, Commissioner of the Social Security Administration.

The following case is a District Court decision. It is well written, but the claimant lost. He will have to appeal to the Circuit Court. If this were a medical situation, I would have to say that in this case “the operation was a success, BUT the patient died”.

BONSANTO v. ASTRUE

LUCY BONSANTO, Plaintiff,

v.

MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant.

Case No. 2:09-cv-366-FtM-DNF.

United States District Court, M.D. Florida, Ft. Myers Division.

September 28, 2010.

OPINION AND ORDER

DOUGLAS N. FRAZIER, Magistrate Judge.

Plaintiff filed an application for a period of disability and disability insurance benefits [DIB] and Supplemental Security Income [SSI] on February 15, 2006, alleging an onset of disability of January 1, 2002 . Plaintiff has acquired sufficient quarters of coverage to remain insured through June 30, 2004. The Agency denied this application in initial and reconsideration determinations. Plaintiff timely requested and appeared at a hearing on October 16, 2007 before Administrative Law Judge (ALJ) Steven D. Slahta. In a hearing decision dated February 23, 2008, the ALJ found Plaintiff not disabled. The ALJ’s hearing decision rested as the final decision of the Commissioner when the Appeals Council denied Plaintiff’s request for review, on April 24, 2009. [Tr. 3-5]. The ALJ’s final hearing decision is now ripe for review under sections 205(g) and 1631(c)(3) of the Social Security Act, 42 U.S.C. §§ 405(g), 1383 (c)(3).

For the reasons set forth below, the Court finds that the Commissioner’s decision is due to be AFFIRMED.

I. SOCIAL SECURITY ACT ELIGIBILITY, THE ALJ’S DECISION AND STANDARD OF REVIEW

Plaintiff is entitled to disability benefits when she is unable to engage in substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to either result in death or last for a continuous period of not less than twelve months. 42 U.S.C. §§ 423 (d) (1)(A); 1382c(a)(3)(A). The Commissioner has established a five-step sequential evaluation process for determining whether Plaintiff is disabled and therefore entitled to benefits. See 20 C.F.R. § 416.920(a)-(f); Crayton v. Callahan, 120 F.3d 1217, 1219 (11th Cir. 1997). Plaintiff bears the burden of persuasion through Step 4, while at Step 5 the burden shifts to the Commissioner. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987).

The decision of Administrative Law Judge Steven D. Slahta, dated December 10, 2007, found Plaintiff was not under a disability as defined in the Social Security Act, at any time from January 1, 2002, (alleged onset date), through June 30, 2004 (date last insured “DLI”) 20 C.F.R. 404.1520(g).

At Step 1 the ALJ found Plaintiff had not engaged in substantial gainful activity since her alleged onset date of January 1, 2002, through her date last insured of June 30, 2004. (Tr. 13). At Step 2 the ALJ found Plaintiff suffered from severe impairments of fibromyalgia, colitis, irritable bowel syndrome, obesity, and depressive disorder. At Step 3 the ALJ found Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926). At Step 4 the ALJ determined Plaintiff has the residual functional capacity to perform a wide range of sedentary work with a sit/stand option. At Step 5 the ALJ found Plaintiff (through June 30, 2004), was unable to perform any of her past relevant work as a cook, culinary manager, teacher, and retail salesperson.

In reviewing a decision by the Commissioner, the District Court is bound to uphold the Commissioner’s findings if they are supported by substantial evidence and based upon proper legal standards. 42 U.S.C. §§ 405(g), 1383(c)(3); Lewis v. Callahan, 125 F.3d 1436, 1439-40 (11th Cir. 1997). Factual findings are conclusive if supported by “substantial evidence,” which is more than a scintilla and consists of such relevant evidence as a reasonable person would accept as adequate to support a conclusion. Lewis v. Callahan, 125 F.3d at 1440. The Court does not decide the facts anew, reweigh the evidence, or substitute its judgment for that of the Commissioner. Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002). If the Commissioner’s decision is supported by substantial evidence, the Court must affirm even if the evidence predominates against the decision. Wilson v. Barnhart, 284 F.3d at 1291. However, the Court must conduct an exacting examination of whether the Commissioner followed the appropriate legal standards in deciding the claim and reached the correct legal conclusions. Wilson v. Barnhart, 284 F.3d at 1291. The failure to apply the correct law or to provide the reviewing court with sufficient reasoning for determining that the proper legal analysis has been conducted will mandate reversal. Keeton v. Department of Health and Human Servs., 21 F.3d at 1066.

II. Review of Facts and Conclusions of Law

A. Background Facts:

Plaintiff was born on July 18, 1968, and was thirty-nine years old at the time of the February 28, 2008, hearing decision. Plaintiff reported she has a high school education, two years of college and has worked in the past as a cook, culinary manager, teacher, and retail salesperson. Plaintiff reports her disability began January 1, 2002, due to fibromyalgia, colitis, irritable bowel syndrome, obesity, and depressive disorder. After review of the medical evidence and testimony at the hearing from Plaintiff, the ALJ found Plaintiff not disabled.

The ALJ found Plaintiff had the residual functional capacity (RFC) for a wide range of sedentary work with a sit/stand option. The ALJ found that Plaintiff could occasionally climb, balance, kneel, stoop, crouch, and crawl and precluded exposure to hazards. The ALJ limited Plaintiff to unskilled, low stress work defined as one to two step tasks, routine repetitive tasks, working primarily with things rather than people, and entry level positions. Plaintiff could not return to her past relevant work. Relying on the testimony of a vocational expert (VE) and the Medical Vocational Guidelines (Grids) as a framework for decision making, the ALJ found that other work existed in significant numbers in the national economy that Plaintiff could perform. The ALJ found Plaintiff not disabled.

Plaintiff has an extensive history of gastric conditions, including irritable bowel syndrome, and reflux disease. On March 9, 2003, Plaintiff was diagnosed with probable acute cholecystitis, reflux disease, and irritable bowel syndrome (“IBS”). Plaintiff underwent surgery several days later and was diagnosed with acute calculous cholecystitis. Plaintiff continued to receive treatment through October 2004 with Dr. Andrew Conn.. On October 19, 2004, Plaintiff presented with abdominal cramping and frequent diarrhea. On October 27, 2004, Dr. Conn performed a colonoscopy. Dr. Conn’s notes post-op reveal “colon polyp, normal colon, probable irritable bowel syndrome (“IBS”).

Plaintiff’s abdominal pain continued to be problematic, resulting in an additional emergency room visit on August 18, 2005, (past “DLI” of June 30, 2004) where Plaintiff was treated by Dr. A. Lafferty. Plaintiff was diagnosed with abdominal pain, vomiting and diarrhea with possible colitis. Plaintiff received normal saline, Levaquin, Flagyl, Phenergan and Dilaudid and was given an out-patient prescription of Flagyl, Leavquin, Phenergan and Vicodin. Dr. Lafferty’s report further stated that Plaintiff’s “[c]omplete blood count is within normal limits. Serum electrolytes were within normal limits with the exception of the glucose being 100. Liver function tests and lipase within normal limits. Urine pregnancy test negative. Urinalysis is normal”.

Through September 2005, Plaintiff was treated by Dr. Asif H. Choudhury. Plaintiff was diagnosed with abdominal pain and referred for further testing. On September 6, 2005, Dr. Choudhury performed an esophagogastroduodenoscopy with biopsy and colonoscopy. Plaintiff’s post-operative diagnosis was gastritis.

As of September 19, 2005, Plaintiff reported biliary type diarrhea. On September 21, 2005, Dr. Choudhury performed the following procedures: endoscopic retrograde, cholangiopancreatography with sphincterotomy. Dr. Choudhury post-operative diagnoses reflects: “[B]iliary dysfunction with Sphincter of Oddi Dysfunction, status post sphincterotomy was done and balloon sweeping was done without any evidence of any stone.”  “[A]SSESSMENT: Most likely biliary Dysfunction with Sphincter of Oddi Dysfunction causing the problem, status post sphincterotomy was done”.

Plaintiff was examined and treated by Jack Clark, DO, on March 8, 2006 for abdominal pain. Plaintiff reported that “everything hurts”. Plaintiff also reported being in pain for the past five years and having ongoing digestive symptoms with abdominal distress. She reported migraine headaches, anxiety, colitis, “IBS”, muscle and bone pain and numbness in her legs and the corners of her mouth. Dr. Clark’s examination also revealed Plaintiff was morbidly obese and looked depressed. Plaintiff had trigger points in the trapezius area, gluteal locations, trochanteric bursa, left elbow and low cervical area. Dr. Clark diagnosed “[f]ibromyalgia as part of effective spectrum disorder with migraine headache, chronic abdominal and pelvic pain, depression and anxiety”. Plaintiff returned to Dr. Clark in October 2007 with complaints of widespread pain. Dr. Clark noted that he had not seen Plaintiff in over a year. Examination revealed myofascial trigger point tenderness and allodynia. However, Plaintiff’s motor strength was intact.

State Agency Physician Ronald Kline reviewed Plaintiff’s medical records in May 2006, and found that she could occasionally lift and carry 20 pounds and frequently lift and carry 10 pounds. Dr. Kline found that Plaintiff could sit, stand and/or walk for six of eight hours (Tr. 317). Dr. Kline found that Plaintiff could occasionally climb, balance, stoop, kneel, crouch, and crawl. Specifically, Dr. Kline found Plaintiff to be:

“[m]orbidly obese with HX IBS and alleging diffuse pains consistent with fibromyalgia. Recent Cellulitis right foot and talar fx, now healed. 69″ 284 lbs BP 112/70. Recent Exams show multiple tender trigger points but are otherwise normal”.

State Agency Physician, Timothy Foster, Ph.D. psychologist, reviewed Plaintiff’s medical records on May 16, 2006, and determined Plaintiff to be mildly restricted in activities of daily living; mildly restricted in maintaining social functioning, moderately restricted in maintaining concentration, persistence or pace, with no episodes of decompensation. Dr. Foster’s notes state:

“[T]his is a 37 yr old female at initial alleging fibromyalgia, insomnia as well as alleging depression. There is no hx of psych treatment. Cl was sent to examining Dr. Zsigmond for current psych interview and MSE. Dr. Zsigmond gives only the dx of Adjustment disorder to this applicant. I am not finding severe functional limits from mental at this time”.

State Agency Physician, Dr. Laura Browning reviewed Plaintiff’s medical records in November 2006 and also found that she could occasionally lift and carry 20 pounds and frequently lift and carry 10 pounds. Dr. Browning found Plaintiff could sit, stand and/or walk for six of eight hours and found no postural limitations. Dr. Browning’s notes state:

“… In 9/05 all tests, including EGD, colonoscopy, CAT scan of the abdomen and pelvis, were negative. She has had cholescystesctomy in the past. She underwent a total abdominal hysterectomy in 10/05 secondary to pelvic pain, fibroids and ovarian cysts. 3/06 follow-up showed no complaints and the pelvic exam was negative. In 3/06 she also underwent a full physical exam for possible Fibromyalgia — at that time she weighed 289 lbs., her lungs were clear, there was” FROM” [full range of motion] of all joints — the remainder of the exam was also unremarkable.

Dr. Nancy Dinwoodie, reviewed Plaintiff’s medical records on November 16, 2006 and completed the Psychiatric Review Technique Forms (“PRTF”). Plaintiff was noted to be mildly restricted in activities of daily living; mildly restricted in maintaining social functioning, moderately restricted in maintaining concentration, persistence or pace, with no episodes of decompensation. Dr. Dinwoodie notes state:

“[C]1 is a 38 year old female alleging disability to chronic pain and anxiety. Cl was in Ruth Cooper CSU 08-06 got 1 day. Cl learned that her husband was with another woman. Cl OD’ed and was hospitalized. Cl had labile mood and was very attention seeking. DX Adjustment Disorder and Cocaine and Benzodazepine abuse. MER revealed that she had questionable credibility. Cl has had a recent life crisis in regard to her husband. Cl related that she tried to take her life, but she denied suicidal intent in the hospital. This goes along with the statement that she was needy and attention seeking”.

On January 3, 2008, Plaintiff was examined by Claudia Zsigmond, Psy.D. (Dr. Zsigmond completed a General Clinical Evaluation with Mental Status, Memory Test Assessment and Completion of Mental Functional Capacity Form provided by the Office of Disability Determinations). Plaintiff reported to Dr. Zsigmond that in August of 2006 she was psychiatrically hospitalized following an overdose on prescription medications and Cocaine. Plaintiff was placed under the Baker Act for approximately one week until she mentally stabilized. Since then Plaintiff has been treated on an out-patient basis and receives pastoral counseling. Dr. Zsigmond noted:

“[H]er prognosis is poor due to her poorly managed mental illness and limited coping skills. On the AMS-III she obtained an immediate Memory score of 69 and General Memory score of 66 placing her in the Extremely Low range of memory functioning. However, her poorly managed mental illness and poor concentration impaired her performance”.

“[R]ECOMMENDATION: “[O]btain health Insurance and continue appropriate medical care, including a neurological consultation given her report of recent “mini-stroke”. She would also benefit from individual counseling to address depression and enhance her coping skills”.

Plaintiff was seen by Stanley Rabinowitz, M.D., S.C. on December 22, 2007 at the request of the Office of Disability Determinations. Plaintiff’s chief complaint was that she was suffering from fibromyalgia. Dr. Rabinowitz found Plaintiff to be morbidly obese and noted she complained of “[p]ain with any range of motion testing or orthopedic maneuver.” “[I] indicated to her how difficult it would be to do an adequate examination if she couldn’t try to do things on her own. She had great difficulty doing this, and finally consented to trying to do an appropriate examination. Significant symptom magnification and embellishment were evident.” IMPRESSIONS: “Chronic fibromyalgia with multiple somatic complaints; history of chronic depression, history of irritable bowel syndrome and right upper extremity pain, etiology undermined.”


B. SPECIFIC ISSUES

I. DID COMMISSIONER FAIL TO ARTICULATE REASONS FOR ONLY CREDITING TREATING AND CONSULTATIVE OPINIONS AND DISCREDITING THE OPINIONS OF OTHER MEDICAL SOURCES.

Plaintiff contends the ALJ failed to adequately explain the basis for selectively crediting or discrediting multiple opinions from multiple medical sources. Plaintiff also contends that the rationale for discrediting these opinions centers mostly on the alleged lack of “objective” evidence, despite the continuous findings of trigger points and Plaintiff’s diagnosis of severe fibromyalgia.

In June 2006, Dr. Asif Choudbury’s opinion was Plaintiff was unable to work due to a fibromyalgia attack. The ALJ gave little weight to this opinion as the examination showed only diffuse abdominal tenderness. Dr. Choudbury noted that Plaintiff’s gastro-intestinal symptoms worsened when her fibromyalgia worsened. However, the record shows that gastrointestinal work-ups were repeatedly within normal limits with little objective evidence to explain Plaintiff’s symptoms. Further, Dr. Choudhury noted that “[P]laintiff’s rheumatologist should decide whether or not Plaintiff needs disability due to fibomyalgia”, indicating he was unsure about his opinion. The ALJ properly found that Dr. Choudhury’s limitations were inconsistent with the evidence of record.

Dr. Clark notes show that April 2006 through August 2006, Plaintiff showed positive fibomyalgia trigger points. However, he also noted that there were no deformities or synovitis over the joints, Plaintiff joints had full range of motion. Further, he noted that Plaintiff’s motor strength was intact throughout and there was equal and symmetric deep tendon reflexes. The ALJ properly found that Dr. Clark’s limitations were inconsistent with the evidence of record.

Dr. Rabinowitz’s notes show that he was unable to test the Plaintiff’s gait because of her dependence on assistance (holding on to objects in the room) and a quad cane when ambulating. Further, that “her range of motion testing was impossible to adequately perform because Plaintiff complained of significant pain with even minimal range of motion testing of the ankles, knees, hip, and shoulders.” Significantly, there was no evidence of active joint inflammation, deformity, instability, or contracture. There was no evidence of paravertebral muscle spasm. Straight leg raising was negative bilaterally in the sitting position and postive bilaterally in the supine position. Grip strength was 4/5 in the left hand and could not be assessed in the right hand. Additionally, as noted above Dr. Rabinowitz found that Plaintiff was embellishing and magnifying her symptoms.

The ALJ also properly found that Dr. Rabinowitz’s findings were based upon Plaintiff’s subjective complaints instead of valid objective findings. (Tr. 19). The ALJ reviewed the medical evidence of record and found the opinions of Dr. Clark and Dr. Rabinowitz’s were not supported by the medical evidence of record. (Tr. 19). Substantial evidence supports the ALJ’s conclusion that Plaintiff is capable of a wide range of sedentary work.

II. DID COMMISSIONER ERR IN RELYING ON “VE” TESTIMONY THAT CONFLICTS WITH THE DICTIONARY OF OCCUPATIONAL TITLES

Plaintiff argues that the ALJ erred in relying on the vocational expert’s (“VE”) testimony that conflicted with the Dictionary of Occupational Titles because the only occupations listed require more than the ability to perform one to two step tasks.

Plaintiff’s “RFC” was for a wide range of sedentary work with a sit/stand option; “[s]he can occasionally climb, balance, kneel, stoop, crouch, and crawl” and was precluded from exposure to hazards. Plaintiff was limited to unskilled, low stress work defined as one to two step tasks, routine repetitive tasks, working primarily with things rather than people, and entry level positions. Plaintiff’s “RFC” precluded her from performing her past relevant work; therefore, the burden of production shifted to the Commissioner.

To meet this burden, the Commissioner must show the existence of a significant number of other jobs in the national economy that the claimant is capable of performing, given her vocational profile and “RFC” Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987); Boyd v. Heckler, 704 F.2d 1207, 1209 (11th Cir 1983). If an ALJ finds that a claimant cannot perform a full range of work within a given exceptional level, “VE” testimony is the preferred method to determine whether the claimant’s non-exceptional impairments further diminish her ability to work at that level 20 C.F.R. §§ 404.1561, 416.961; Social Security Ruling (SSR) 83-12; see also Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995).

To determine the extent to which these limitations erode the unskilled sedentary occupational base, the ALJ asked the “VE” whether jobs exist in the national economy for an individual with Plaintiff’s age, education, work experience, and residual functional capacity. The “VE” testified that given all the factors the individual would be able to perform the requirements of representative occupations such as: surveillance systems monitor (DOT code 379.367-010: sedentary; SVP 2; 200 local jobs; 1,000 state jobs: 100,000 national jobs) and semi-conductor bonder (DOT code 726.685-0) and determined that there are jobs that exist in significant numbers in the national economy that Plaintiff can perform (20 C.F.R. 404.1560 (c), 404.1566, 416.96(c), and 416.966).

The ALJ asked the “VE” whether an individual with Plaintiff’s “RFC” and other vocational characteristics could perform her past relevant work or other work . The “VE” testified that such an individual could not perform Plaintiff’s past relevant work, but could perform other work, including the jobs of surveillance system monitor and semi-conductor bonder as listed above . The “VE’s” testimony was based upon a hypothetical question that fairly set out all of Plaintiff’s limitations. The ALJ, therefore properly relied on the “VE’s testimony to find that Plaintiff could perform other work and was not disabled. Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999). The documentary evidence and an analysis of Plaintiff’s testimony supports the ALJ’s “RFC” determination and his hypothetical question to the “VE”. Therefore, pursuant to SSR 00-4p, the vocational expert’s testimony is consistent with the information contained in the Dictionary of Occupational Titles. Thus, Plaintiff failed to prove that a material inconsistency actually existed between the “VE”‘s testimony and the “DOT”.

The ALJ applied the correct legal standards in evaluating Plaintiff’s case, and substantial evidence supports the ALJ’s finding that Plaintiff was not disabled.

C. CONCLUSION

For the foregoing reasons, the ALJ’s decision is consistent with the requirements of law and supported by substantial evidence. Therefore, based on the application for a period of disability and disability insurance benefits protectively filed on February 15, 2006, Plaintiff is not disabled under sections 216(I) and 223(d) of the Social Security Act.

Based on the application for Supplemental Security Income protectively filed on February 15, 2006, Plaintiff is not disabled under section 1614(a)(3)(A) of the Social Security Act.

Accordingly, the decision of the Commissioner is AFFIRMED pursuant to sentence four of 42 U.S.C. § 405(g). The Clerk of the Court is directed to enter judgment dismissing this case and thereafter, to close the file.

DONE AND ENTERED.

1. Both parties have consented to the exercise of jurisdiction by a magistrate judge, and the case has been referred to the undersigned by an Order of Reference signed by Judge Richard A. Lazzara dated September 1, 2009. (Doc. 16).

2. Rheumatologists may be better qualified to determine the effects of fibromyalgia because not all doctors are trained to recognize this disorder. See Stewart, 2000 U.S. App. LEXIS 33214, at *8 (citation omitted); see also Burroughs v. Massanari, 156 F.Supp. 2d 1350, 1367 (N.D. Ga 2001 (acknowledging that a specialist in rheumatology is better qualified to diagnose fibromyalgia and determine its effects on an individual); 20 C.F. R. § 404.1527(d)(5) (stating that specialists’ opinions on medical issues related to their area of specialty are generally given more weight).

3. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is “not disabled,” whether or not the claimant has transferable job skills. (SSR 82-41 and 20 C.F.R. Part 404, Subpart P, Appendix 2).


[1]*NOTE: The name and location of the claimant has been changed.

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Social Security Judge Found Unconscious But Alive

Under fire retired Social Security Judge recently found unconscious by police 

BARBOURSVILLE, W.Va. — A Barboursville police report released Friday said police recently found a former federal administrative law judge, who has been under investigation, in his car barely breathing after what may have been a suicide attempt.

Retired Social Security Administrative Law Judge David Daugherty has been under fire since a 2011 report.

Various media reports Saturday detailed the police report concerning David Daugherty.  That report said he was found unconscious in his car Monday afternoon in a Barboursville church parking lot.

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

Judge Daugherty was taken to a hospital and later released.

Judge Daugherty retired in 2011 shortly after a story in the Wall Street Journal focused on the high rate in which he approved Social Security disability cases. Judge Daugherty was placed on leave after the story broke. Allegations of fraud have been under investigation by a U.S. Senate committee. The committee recently held a congressional hearing.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Daugherty served as a Cabell County circuit judge for 7 years beginning in 1977.

By Jeff Jenkins in News | October 19, 2013

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

Judges Hold Hearings But Issue No Decisions

Furloughed attorney waits and worries that Social Security appeals will be delayed

Elisa Wayne 2

Ken Scarboro/KPCC

Elisa Wayne, a furloughed SSA attorney, holding the letter she was given to provide creditors – notifying them of her status and requesting leniency.

The Social Security Administration announced that during the partial shutdown of the federal government, benefits checks will still go out — a big relief to millions of people who depend on that income.  But the agency has still had to furlough some of its employees.

Elisa Wayne is one of them. Wayne works as an attorney in the Social Security Administration (SSA) Office of Disability Adjudication and Review.

But on the first day of the shutdown, she was in her downtown LA office for just an hour.  She left on furlough with a letter provided by her supervisor, explaining why she might not be able to make timely payments on her bills.

“They said, ‘here, make a bunch of copies, and if you need it, give it to whoever you need to, you know, to whoever your creditors are,’”  Wayne told KPCC.  Then she read some lines from the letter:

To whom this may concern:  I am writing to you on behalf of the Social Security Association employees to ask for your assistance at a time of personal financial hardship,

Congress and the president have not reached agreement on the appropriations bill for SSA.  Since SSA has no funding at this time to pay employee salaries, we have been required to furlough employees.  This action will make it exceedingly difficult for many employees to meet their financial obligations

I would appreciate any assistance you can provide in arranging the postponement,  temporary reduction or rescheduling of payments for any current financial obligation with your organization.

‘Less Freaked Out’

Wayne was also furloughed when the federal government shut down during the Clinton Administration in 1995 and 1996.  After missing a few weeks of work, she says she was paid retroactively.  She hopes that will be the case this go-round.

“I’m less freaked out than some of the new hirees who don’t really know what to expect,” Wayne said.

An attorney with more than twenty years of government service, Wayne earns more than $100,000 a year. She’s on her own and her monthly expenses include an apartment in Brentwood.  She paid her monthly rent of $2500 the day government shutdown began and hopes she won’t have to send one of those letters to her landlord next month.

“I don’t have a big cushion between paychecks, like maybe a couple hundred dollars that I can squirrel away somewhere,” Wayne says.

Shutdown makes ‘a farce’ of disability hearings

Wayne knows she’s lucky compared to the people who depend on her work. When Social Security disability benefits are denied, applicants can appeal the decision in hearings held before judges in her office.  But Wayne says she and nine other attorneys working in the downtown LA office are furloughed.

On its web site, the SSA says during the shutdown, hearings offices remain open to conduct hearings before an Administrative Law Judge.  There are 18  hearing offices in California, including locations in Los Angeles, Downey, San Bernardino, Long Beach, San Diego, Orange, and Pasadena.

Wayne says while the judges are still working and supposed to be running hearings,  “it’s really a farce, because there is nobody there to write the decisions,  which I do. ”

Wayne says that the furloughs are bound to delay an already slow decision-making process for people who are counting on their appeal, and might really need government assistance.

“This is life or death for them, waiting to hear,” Wayne says of the applicants. (Brian Watt)

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

Disability Fraud Runs Deep and Wide

Social Security Poster: old man

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

Widespread fraud reported in Social Security Administration‘s Disability Program

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

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

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

(Judge David Daugherty)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Doug McKelway

By Doug McKelway

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

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

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

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

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

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

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

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

The report claims these doctors would sign a claimant’s form — paving the way for Judge David Daugherty to award benefits.
One in three of the cases reviewed revealed identical paperwork.

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

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

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

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

In a “60 Minutes” broadcast on Sunday, October 6, CBS News tracked down Conn.
When reporter Steve Kroft asked Conn to talk about his relationship with the former judge and his incredible success in disability court, Conn didn’t elaborate.

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

At Monday’s hearing, he remained even more restrained.
I respectfully assert my constitutional right not to testify here today, sir,” Attorney Conn told committee members.

Judge Daugherty left the hearing before he was called to testify.
More than 11-million Americans receive disability insurance. That’s up 20 percent in the last six years.

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

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

Nov. 02, 2013 

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

Conn ordered a massive destruction of files at his office, according to a report from the Committee on Homeland Security and Governmental Affairs and testimony at a Congressional hearing last month.
ALJ Daugherty, then 75 years old, called Conn’s firm multiple times in the days after the article appeared, but Conn refused to talk to the judge on his law firm’s phone lines, the Congressional report found.
The report states the judge left a message on Conn’s home phone that said:
“OK. There are those of us who know the D.A. There are those of us who know the circuit judge. There are those of us who have an inside track and hear some things. We need to talk. If you don’t want to, it’s your loss. You need to contact me … You need to do it. There are things you need to know. Good-bye.”
After that, the report alleges, ALJ Daugherty and Conn communicated through the use of disposable prepaid cell phones so the calls couldn’t be tracked.
ALJ Daugherty was placed on administrative leave pending investigation and retired in 2011. Judge Charlie Andrus also stepped down as chief justice of the Huntington office, though he continued to serve as a judge until being placed on leave pending an investigation and retiring this year.
ALJ Debra Bice, chief administrative law judge (Chief ALJ) for the entire Office of Disability and Adjudication Review under the Social Security Administration (SSA/ODAR), told a colleague that when she questioned Andrus on ALJ Daugherty, “he couldn’t give an honest assessment of what was going on.”
While Andrus testified before a Senate committee investigating Social Security fraud earlier this month, Conn exercised his 5th Amendment right not to testify on evidence that might incriminate himself.
Despite receiving a federal subpoena, ALJ Daugherty did not show up for the hearing.
Huntington office workers Sarah Carver and Jennifer Griffith gave detailed testimony on the dysfunction of their workplace, and two of Eric Conn’s former employees also testified.
“Those women, the ones who spoke out, they are extremely brave and deserve a lot of credit,” said ALJ Daniel Kemper, a former judge and colleague of ALJ Daugherty in the Huntington office.
Shortly after the Congressional hearings, Barboursville Police, responding to a call of what the department called a possible suicide attempt, found ALJ Daugherty passed out in a car with a garden hose duct-taped to the exhaust pipe and running into the vehicle. An empty bottle of liquor and an empty pill bottle were also found, according to police.
ALJ Daugherty was revived and spent an unknown number of days at an area hospital before being released.
Just how Huntington Administrative Law Judge David “D.B.” Daugherty managed to be one of the most productive Social Security Administration judges in the country in the later years of his career was something of a mystery to his co-workers and fellow judges. ALJ Daugherty, who became an administrative law judge in 1990, was hardly ever in his office and rarely conducted hearings, according to a report issued by the U.S. Senate Committee on Homeland Security and Governmental Affairs last month after it looked into possible abuses in the Huntington Social Security office.
The report and recent Congressional testimony allege ALJ Daugherty abused an initiative by the Social Security Administration urging judges to decide between 500 to 700 cases per year to clear some of the system’s backlog.
Daugherty well exceeded those marks, moving thousands of disability claims per year, almost all of which he approved by simply looking at a file and making a decision while rarely conducting hearings. When those hearings were conducted, it was at a break-neck pace.
When a fellow judge expressed concern over moving cases quickly, Judge Daugherty told him “You’re just going to have to learn what corners to cut,” according to the report.
The document indicates Judge Daugherty engaged in this behavior for years even before the 2007 initiative, and perhaps made himself indispensable because he exceeded numeric goals and helped put the Huntington Office of Disability and Adjudication Review among the most productive offices in the country.
But the volume of cases didn’t match what colleagues observed of the judge’s work ethic.
The report states one administrative law judge in an email called Daugherty “intellectually lazy,” and that was “probably his most obvious trait.”
Another colleague said Daugherty was “A spoiled little boy who became a judge” who “sought the easiest way out” in his work.
The 266-page congressional investigative report, Congressional testimony and media reports allege Daugherty worked with Kentucky disability attorney Eric C. Conn to abuse the Social Security Administration by awarding unearned disability benefits to so many clients that Conn became the third-highest-earning disability attorney in the United States at one point.
The report also reveals that Judge Daugherty approved benefits in thousands of other cases that had no connection to Conn.
Decisions made by Daugherty from 2005 through 2011 to award disability benefits to claimants cost Social Security more than $2.5 billion, according to the report. His 99.7 approval rating over a two-year monitored period was well above the national average of 60 percent.

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

The report states it was a running joke in the Huntington Office of Disability and Adjudication Review that if someone was looking for Judge Daugherty, “you should not look in his office.”
Various fellow judges and even some office personnel brought it to the attention of management numerous times that Judge Daugherty would sign in, disappear for the day, then return and sign out as if he had worked eight hours. Sometimes he even gave himself extra hours worked. The judges do not receive extra pay for overtime, but can earn extra leave.
The report states that Daugherty’s behavior when it came to time and attendance was “a constant source of tension” in the Huntington office.
One of Daugherty’s critics in that regard was fellow judge ALJ Daniel Kemper.
“It was extremely frustrating,” the now-retired Kemper said in an interview with The Herald-Dispatch recently. “It’s one of the reasons that I left.”
Kemper and Daugherty were sworn in together in 1990, and assigned to the Huntington office. Kemper said he spent three weeks in training with Daugherty, who had previously been a circuit judge in Cabell County from 1977 through 1984.
Kemper and other justices issued complaints to Huntington Office Chief Justice (HOCALJ) Charlie Andrus multiple times over a period of years regarding the attendance and sign-in issues, but Daugherty was never disciplined.
The report states that Andrus tried on several occasions to kick the complaints up to his superiors, who told the justice it was his responsibility to manage such an issue, with one official saying, “I think Judge Andrus wants someone else to do his job.”
Kemper contended in the congressional report that Daugherty was never disciplined because he moved a high volume of cases.
Former fellow judge William Gitlow wrote to a colleague: “We have Judge Daugherty here who scans the master docket each month, pays 90+% of the time and gets out 80 to 100 cases a month. So we make our numbers each month. Without him we would not. Ever.”
Documents also show that in the case of another Huntington judge who only decided about 20 cases per month, HOCALJ Andrus moved quickly to conduct a thorough investigation of alleged time card abuse.
After a Wall Street Journal article about Daugherty’s relationship with Conn was published in May 2011, Kemper, who retired in 2007, said he was floored by statements Daugherty made to local media.
Daugherty said in those interviews that he moved a lot of cases because he loved his job and applied himself to the task of relieving a backlog of cases.
“He was claiming he got all these cases because he was such a hard worker,” Kemper said. “… His contention that he worked so hard could be refuted just by his time and attendance records.”
Kemper said he had no idea where Daugherty went every day.
” … there was nothing I had seen,” Kemper said. “I didn’t go so far as to make an individual effort to follow him around.”
Enter Eric Conn
The committee report indicates that Daugherty didn’t work hard, but fast.
He decided most of his cases “on the record,” meaning he didn’t conduct a hearing with the claimant, but awarded benefits just by looking at the case file.
In relation to Conn, since at least 2006, Daugherty would call the attorney’s office and read off a list of names and Social Security numbers of Conn’s clients who were on the judge’s docket, referred to as the “DB list,” and tell Conn or his office employees what type of medical evidence he needed to approve the case, investigators found.
Conn would then take disability forms that were already filled out to doctors to sign. Conn allegedly paid local physicians he referred to as “whore doctors” anywhere from $300 to $650 per form, according to Congressional testimony and the committee report.
Daugherty would then write favorable decisions for the client, using variations on the same language in nearly every case, the report states. It also said Daugherty would have Conn change the onset date of a condition so that records of previous denials wouldn’t factor in because the judge would be supposedly looking at a new medical diagnosis.
Many of those cases were moved onto Daugherty’s docket by the judge himself, according to the report and testimony. Andrus was bombarded by complaints from other judges and docket clerks that Daugherty was taking cases that hadn’t been assigned yet, or, in some cases, had already been assigned to other judges.
Andrus would promise to discuss the issue with Daugherty, but the judge was never disciplined, according to the report.
Daugherty was questioned about his relationship with Conn as early as 2002, but deflected any criticism back on Andrus, alleging the chief judge had an inappropriate social relationship with the attorney.
Andrus admitted he had met once with Conn for a meal, and had gone to a movie with the attorney. He also said Conn offered him all-expenses-paid trips to Brazil and Russia, which Andrus said he flatly turned down due to conflict-of-interest issues.
At times, Daugherty made some rather striking allegations about his superior.
In replying to questions from a higher judge about his social relationship with Conn, Andrus said “This is exactly what I was talking about when dealing with Judge Daugherty. At least this time he did not accuse me of doing cocaine in my office.”
Daugherty’s hearings
When judge Daugherty did conduct hearings, they were done in assembly-line fashion, according to his fellow judges.
Daugherty would review Conn’s cases in the Huntington office’s Prestonsburg, Ky., satellite office, which was close to Conn’s legal practice.
“I would be with (Daugherty) in Prestonsburg, and you would see Eric Conn bring in these scores of people at one time,” Kemper said. “(Daugherty) would finish 20 cases in the time it took me to do two or three.”
According to the report, Daugherty would conduct hearings in 15-minute increments, while a single hearing for another judge would take 45 minutes to an hour.
But in most of the cases involving Conn’s clients, Daugherty opted for making “on the record” decisions based on case files and negating the need for hearings.
According to the congressional report, Daugherty conducted 80 hearings for 481 of Conn’s clients he approved for benefits in 2006. Those hearings were conducted over a span of four days.
In 2007, Daugherty saw only four of 509 clients he handled for Conn, with all of the hearings conducted in one day. He didn’t conduct hearings for any of Conn’s 429 clients he approved for benefits in 2008. In 2009 and 2010, he saw a total of five of Conn’s 981 clients who were granted benefits. In 2011, before his suspension, Daugherty saw 18 of 366 clients he approved for Conn, all in one day.
In one instance in 2002, Daugherty canceled a Prestonsburg docket of 30 cases and granted all the claimants benefits using the on-the-record method of case review. However, several court employees needed for the hearings had already been scheduled and paid to be at the Prestonsburg office.
That prompted Andrus to send out a memo to the entire Huntington office asking all cancelations be cleared through him. Regional Chief Justice at the time, Judge Frank Cristaudo, who operated out of the Philadelphia office, wrote a memo requesting that Daugherty be officially reprimanded.
To state that 30 hearings were canceled and 30 on-the-record decisions issued to help the agency meet performance goals suggests possible impropriety and flawed decisions,Cristaudo wrote.
Cristaudo had drafted a reprimand and agency leaders met in December 2002 to decide if Daugherty should be disciplined. According to the report, the letter was never sent due to agency concerns regarding judicial independence.
That phrase — “judicial independence” — was one that Andrus would use time and again while being grilled by a U.S. Senate panel last month on why Daugherty was never disciplined.
According to the report, Andrus did note that Conn would frequently cancel hearings if the case wasn’t on Daugherty’s docket.
He said he confronted Conn directly about this, and Conn remarked “Well, it was good while it lasted.”
According to the report, Daugherty continued to move Conn’s cases to his docket until the Wall Street Journal article was published. That’s when Andrus put a strict lockdown on moving cases and even put a stop to a custom schedule the chief judge had designed that made sure Conn’s cases were heard before any others.
Daugherty did not attend a Congressional hearing on SSA fraud despite a subpoena from the federal government.
Daugherty said he explained his absence in an email through his attorney to the committee, but did not reveal its contents to The Herald-Dispatch.

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

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

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

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

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

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

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

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

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

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

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

 

 

 

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

 

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

 

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

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

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

http://www.amazon.com/Judge-London-Steverson/e/B006WQKFJM
(AP)

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

                      (AALJ President Randy Frye and Marilyn Zahm)

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

 

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

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

 

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

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

 

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

 

Judge Zahm had a lot more to say in an interview in October 2009. (Read the entire interview starting at page 430 in my book, socialNsecurity, available at  http://www.amazon.com/SocialNsecurity-ebook/dp/B006VOQIKK

 

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

 

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

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

Being Born A Man Does Not Render A Woman Disabled

Social Security Poster: old man

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

French v. Commissioner of Social Security (USA)

April 23, 2013

 ESPER FRENCH, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.

 

 

 

 

March 12, 2013, Decided

 

OPINION

 

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

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

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

I. BACKGROUND

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

A. Procedural History

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

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

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

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

 Plaintiff filed this suit on June 27, 2012.

B. Medical Evidence

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

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

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

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

 ALJ Scallen
also presided over the first, abbreviated hearing,

and trans-sexual disorder/gender identity disorder.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

C. Testimony at the Hearing Before the ALJ

1. Plaintiff’s Testimony

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

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

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

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

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

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

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

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

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

taking hormone therapy medication.

2. The Vocational Expert’s Testimony

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

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

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

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

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

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

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

II. THE ALJ’S APPLICATION OF THE DISABILITY FRAMEWORK

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

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

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

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

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inability to engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected to
last for a continuous period of not less than 12 months.

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

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

application of a five-step sequential analysis:

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

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

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

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

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

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

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

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

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

Cir. 1994).

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

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

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

III. STANDARD OF REVIEW

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

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

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

10

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

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

IV. ANALYSIS

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

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

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

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

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

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

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

12

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

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

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

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

13

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

B.  Severe Impairments

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

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

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

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

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

V. CONCLUSION AND RECOMMENDATION

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

15

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

 

s/Laurie J. Michelson

LAURIE J. MICHELSON

UNITED STATES MAGISTRATE JUDGE

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