Posts Tagged With: ALJ

Culture of Corruption At Social Security Administration, Starts At The Top


The “so-called” scandal in the Madison, Wisconsin Social Security Office of Disability Adjudication and Review, SSA/ODAR, is disturbing. I believe that Judge John H. Pleuss’ is getting a raw deal.

I have some thoughts on the matter. At the end of this Blog post I have posted the article written by M. D. Kittle. Please read the article after I offer my comments. I have considerable experience in these matters.

This is an invasion of Judge John H. Pleuss’ privacy. I express no opinion concerning the Judge’s remarks in his personal notes. Some may find them inappropriate, and some may not. However, the Judge has an “expectation of privacy” in his personal notes and observations.

The Social Security Administration encourages the Judges to keep a “Private File” of notes to refer to when deciding a disability case. The notes help the Judge to refresh his recollection of the claimant and of the Hearing when he goes back to make a decision on the case. The File is separate from the Claimant’s Disability File. They should not be discoverable under the Freedom Of Information Act (FOIA).

The Disability Hearings are private, unless the claimant consents to strangers sitting in on the Hearing. The Judges’ personal notes from the Hearing should also be private.

The disability evaluation process is a “high volume’ business. A Judge must hear 50 to 75 cases a month in order to produce an average of 50 to 60 decisions a month. There are no pictures of the claimant in the case files. All judges scribble notes and memory joggers in order to try to remember the claimant later when they review the file. Credibility weighs heavy in the decision making process. A Judge must conjure up a recollection of the claimant to properly dispose of the case. One Judge’s characterization of the person who appeared before them may be different from another. His job is not to flatter the claimant, but to remember who he or she was. There is nothing in Judge Pleuss’ notes that is grounds for adverse action against him.

If you notice all of the cited comments refer to women; and women, only. Normally that would cause one to think that the ALJ is obsessed with women or female claimants. But, I have a better explanation, and it has nothing to do with the ALJ.

I contend that this incident raises serious questions about the fitness of the Decision Writers in Judge Pleuss’ Hearing Office. Judges do not write their own decisions. There are professional Decision writers in each Hearing Office. Lawyers and Para-legal writers draft a proposed decision based on the ALJ’s Hearing Notes. The ALJ modifies, amends, and approves a final draft.

First, if a Decision Writer has passed on to the Civilian Managers in the Hearing Office Judge Pleuss’ personal notes, that would be unethical and disloyal. We need look no further than the Decision Writers and Management to see what is happening here.

There has always been tension and friction between between the ALJ Corps and civilian managers, all the way up to the Commissioner in Baltimore, Maryland.

On several occasions the AALJ, the Judges’ Union, has lobbied Congress to remove the ALJ Corps from under the authority, supervision, and management of the SSA civilian managers.


Yes, there is a Culture of Corruption here; but, it starts in Baltimore, Maryland at the Office of the Commissioner and the Office of the Chief Administrative Law Judge; and it reaches down to the lowest level. And it is most malignant at the Hearing Office Director (HOD) and Decision Writers level.

Many of the Decision Writers suffer from mild mental disorders. They tend towards Melancholia. They are frustrated, and they bicker and complain. Some tend to be trouble makers.

Many, I have noticed, appear to be envious of the Judges. They resent that the ALJ hears the cases, but they, the writers, have to do the leg work of writing the decision. They work in the dark, behind closed doors, and get little or no credit. This tends to generate friction and resentment.

The worst of the lot are the male homosexual writers. And there are many. There were two in my office for almost 20 years. We had only six writers and the two males were homosexuals.

They are prone to hysterics. They are easily agitated, often for no discernible reason. I was discussing a draft decision with one once and, out of the blue, he became agitated and screamed at me. I was shocked. I did not know what I should do. Do I discipline him, or what? I did nothing, because there are so many of them and they are well placed. Also, the Hearing Office Chief Judges tends to protect them. So, I just let it go.

All of which brings me back to my original point. This is just the type of hanky-panky that male homosexual writers would start. This is how they operate. I know from experience. I spent about 20 years in a Hearing Office and I saw just about every kind of dirty office shenanigans that one could imagine.

The tip-off is that they only mentioned remarks about women. Anyone who has ever had to work with male homosexuals in a legal office or other closed community would notice that. It is a dead give-away.

All of this will probably turn out to be nothing more than a tempest in a tea pot.

Here is the article.

Social Security judge suspended in wake of Madison scandal.

Wisconsin Watchdog has learned that Administrative Law Judge John Pleuss’ hearings in recent days have been canceled amid a looming Social Security Administration Office of the Inspector General investigation into the Madison Office of Disability and Adjudication Review, or ODAR.

Asked whether Pleuss had been suspended, an office employee who answered the phone Thursday June 16would say only that Pleuss was out of the office. So, too, was Office Director Laura Hodorowicz. Asked whether Hodorowicz had been suspended, the employee said, “I can’t answer that,” but that the director is “out today, too.”

Neither Pleuss nor Hodorowicz returned calls from Wisconsin Watchdog seeking comment.

Sources close to the situation say Administrative Law Judge John Pleuss appears to have been suspended as an investigation looms into allegations of misconduct at the Madison Office of Disability Adjudication and Review. Doug Nguyen, spokesman for the Social Security Administration’s Chicago Region, did not return an email seeking comment. ‘Culture of corruption and cover-up’

Wisconsin Watchdog first reported last week about new charges of “pervasive” sexual harassment, bribery and nepotism coming to light at the Madison ODAR facility. These accusations came on top of previous allegations of misconduct, harassment, and whistleblower retaliation at both the Madison and Milwaukee disability claims review offices.

“There is a culture of corruption and cover-up, and that goes all the way to the top,” said an ODAR employee with knowledge of the situation. The staff member spoke on condition of anonymity for fear of reprisal.

Wisconsin Watchdog obtained internal documents showing what employees have described as “highly inappropriate” comments Pleuss has made about claimants appearing before him.

“Young, white (female); attractive brunette,” Pleuss wrote under “Initial Observations” in official hand-written hearing notes. The claimants’ names and other personal information have been redacted.

“Young, white (female); long brown hair; attractive; looks innocent,” the ALJ wrote.

He described another claimant as “buxom,” and noted that a “young, white (woman) looks like a man.”

“Obese, young, white (female) skimpy black top,” he wrote of another claimant.

“Very black, African looking (female),” the ALJ wrote, and parenthetically he added,“(actually a gorilla-like appearance).”

In one document, Pleuss wrote, “I’ll pay this lady when hell freezes over!

RELATED: ‘Culture of corruption and cover-up’ alleged in Madison Social Security office

Pleuss is one of six administrative law judges at the Madison office. He has been the subject of an internal investigation into sexual harassment allegations, according to multiple sources.

The employee who spoke to Wisconsin Watchdog on condition of anonymity said Pleuss has acquired a reputation as “being sexually inappropriate.”

“It truly has become a national running joke,” the staff member said.

But there is nothing funny about the charge by those familiar with the administrative law judge and the “toxic environment” of the Madison office that Pleuss has approved or rejected disability claims based on “how sexy he thought the claimant was,” the employee said.

The insider claims “sexual harassment of staff is pervasive and ongoing” in the Madison office. Other sources have told Wisconsin Watchdog as much.

A disability claims attorney told Wisconsin Watchdog this week that there has been concern for some time about Pleuss’ conduct. The attorney said cases that seemed strong were denied, while weaker cases were approved.

“This issue may explain a lot about that inconsistency,” the attorney said. “Given your reports, I will now be able to raise issues involving females. It should be interesting since I will be asking for copies of his notes on every denial.  I’m sure that request will be denied and I may end up asking federal district court to issue orders for the release of the documents.”

The ODAR employee who spoke to Wisconsin Watchdog said the SSA offices in Milwaukee and Madison are “extremely hostile work environments for whistleblowers.” They also are closely connected by the same administrative players in the Chicago ODAR Region.

Reward and punishment

ODAR whistleblowers have told Wisconsin Watchdog that they have repeatedly been subject to retaliation and intimidation for reporting waste, abusive behavior and other misconduct in their government offices.

Less than a month after Ron Klym was featured in a special investigation, the senior case technician at the Milwaukee Office of Disability Adjudication and Review was told the agency that has employed him for 16 years is proposing to fire him.

Klym detailed the Milwaukee office’s growing backlog of cases. Wisconsin Watchdog obtained records of some of the more lengthy delays.

More problematic is what Klym calls the administrative “shell game.” He said the Milwaukee office’s case disposition numbers have at times drastically improved because managers in the chain have dumped off scores of cases to other regional offices.

(NOTE: This is not new. This was happening before 1990. Shell Games. Paying Down The Backlog. See )

Multiple sources have told Wisconsin Watchdog that, Hodorowicz, director of the Madison office, protects Pleuss and others in her inner circle.

The employee who spoke on condition of anonymity said Hodorowicz is fond of making “dirty backroom deals,” offering  “cooperative” employees perks in the form of financial benefits and special privileges to maintain their loyalty and above all –silence — about misconduct in the office.

Eventually, the office director runs out of sweeteners, the employee said.

“When that happens , the threats begin. … She will threaten people’s jobs, tell them she won’t promote them, lower their performance reviews, say that she will give them a bad reference,” the insider said. “She will give them the worst work assignments in the office.”

Wisconsin Watchdog has obtained emails sent by Hodorowicz that appear to be threatening in nature.

Multiple employees say the office director has been the subject of several investigations into her conduct, in Madison and when she held the same position in Milwaukee. Each time, they say, her cadre of loyalists testify on her behalf. And, sources say, they are rewarded for their loyalty.

And a Madison office staff member said Hodorowicz has taken nepotism to a new level.

Wisconsin Watchdog reported Monday that Office of Inspector General agents are opening an investigation into the Madison office, particularly focusing on Pleuss,  Hodorowicz, and Wayne Gentz, a group supervisor considered to be a Hodorowicz ally.

Also this week, U.S. Sen. Ron Johnson, R-Wis., sent a formal letter to the Social Security Administration requesting the agency’s “unfettered cooperation” in turning over information related to allegations of misconduct and retaliation in SSA’s disability claims review offices.

“I write to you concerning reports of whistleblower retaliation within the Milwaukee and Madison hearing offices of the Social Security Administration’s Office of Disability Adjudication and Review,” Johnson wrote in the letter to Carolyn Colvin, SSA’s acting commissioner.

Johnson, chairman of the Senate Homeland Security and Governmental Affairs Committee, has been trying to get answers from the SSA since a staff-level briefing on May 9.


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

Social Security Administration Pays Lip Service To Disabled Veterans

Social Security launches new expedited disability process for veterans

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

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

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

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

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

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

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

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

For information about this service, please visit


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

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

Social Security Disability Hearing Backlog Growing Again

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

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

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

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

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

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

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


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

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

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

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

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

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

You Need Help When Filing An SSDI Appeal

Things To Consider When Applying for SSDI benefits.

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

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

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

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

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


Find more information about SSDI disability appeal see


(Statistics Source: ALLSUP) ABOUT ALLSUP :

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


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Big Fraud In The Big Apple

                                                                          (There are worms in the Big Apple.)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

Dozens of former cops and firefighters claiming 9/11 trauma were among the 106 indicted for gaming the Social Security disability system to take early retirement and leech off the taxpayers, authorities said.

NYC PAPERS OUT. Social media use restricted to low res file max 184 x 128 pixels and 72 dpi

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

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

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

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

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

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

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

Joe Marino; Jefferson Siegel/New York Daily News

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

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


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

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

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

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

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

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

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

“The brazenness is shocking,” said Vance.


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

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

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

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

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

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

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

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

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


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


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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

Esposito said nothing when he turned himself in earlier Tuesday.


John Stefanowski, an ex-cop, loves golf.

John Stefanowski, an ex-cop, loves golf.

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

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

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

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

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

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

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

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


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

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

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

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


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

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

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

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

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

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

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

With Larry McShane

Read more:

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

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

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

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

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

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

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

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

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

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

By Meghan Keneally



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

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

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

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

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


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

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


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

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


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

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

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

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

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

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

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

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


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

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

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


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

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

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

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

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

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

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

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

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


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

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

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

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

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

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


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

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


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

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

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

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

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

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

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


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

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


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

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

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

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

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

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

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


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

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

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

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

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

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

(By Jonathan Bandler, Oct 7, 2014)

The Police Beat.


A retired New York City police officer from Yorktown facing charges of fraudulently collecting more than $300,000 in federal disability pay while working for Tourneau had previously worked for an Elmsford armored car company – also while claiming to be too injured to work.

James Carson was director of security at American Armored Car Co. from the mid-1990s until the early 2000s, The Journal News has learned.

But since 1990, when he began getting Social Security after a slip-and-fall accident wrenched his back and forced his retirement from the NYPD, Carson should not have been doing any work. He repeatedly claimed he wasn’t working on federal eligibility forms, according to the criminal complaint against him.

Carson, 50, was released on $600,000 bond following his appearance Oct. 1 in federal court in Manhattan. He was arrested that morning at his home and charged with theft of government property, making false statements and failing to report income. He faces up to 20 years in prison if convicted.

The charges covered in the complaint relate to the past 10 years, when Carson collected $306,000 in Social Security disability benefits while working at Tourneau. During that time, Carson won a prestigious award from the National Retail Federation in 2010 for solving a scheme in which two company managers made nearly $700,000 in fraudulent credit card purchases.

Carson declined to answer questions about the charges or about his work at the armored car company when he answered the door at his home Monday.

Tourneau representatives have not returned several phone messages.

Carson is accused of hiding income – as much as $138,000 a year – by having Tourneau pay his wages to a corporation, JACC Security, based at his home. The corporation then paid the wages to Carson’s wife, Carmen, the chief executive officer of the corporation. The money was then listed as her wages in the couple’s annual joint tax returns, according to the complaint.

It was unclear whether a similar payment scheme was in place for any employment before Tourneau.

Former co-workers at the armored car company said they recognized Carson from media coverage of his arrest last week.

American Armored Car Co. shut down more than five years ago. One of its owners, Dominick Colasuonno, served two years in federal prison after he and his brother were convicted in 2007 of tax fraud for failing to pay payroll taxes for employees of the armored car company and bank fraud related to their check cashing company

Colasuonno could not be reached for comment.

Federal authorities would not confirm whether they knew about Carson’s earlier employment or whether he could face additional charges related to the disability funds he collected while working for American Armored Car. Since 1990, he has collected more than $650,000 in Social Security disability.

“(We) cannot confirm or deny allegations of Mr. Carson’s alleged work activity prior to 2004, however the investigation is ongoing,” said Special Agent in Charge Edward Ryan of the Social Security Administration’s Office of the Inspector General.

Carson filled out Report of Continuing Disability forms in 1995 and 1998, according to the criminal complaint. In them, he agreed that he would notify the Social Security Administration if his medical condition improved and he returned to work and acknowledged that lying on those forms was a federal crime.

Carson was already under investigation in April when he showed up limping and walking with a cane for an interview regarding his continued receipt of benefits. He claimed that he had not worked since the date of his slip-and-fall in 1990 due to his back pain. On forms he filled out, Carson denied having any income since his disability began; said he rarely drives; and doesn’t go anywhere on a regular basis.

But throughout the spring and early summer, Special Agent Peter Dowd chronicled Carson’s regular comings and goings between his home and Tourneau’s Long Island City office. Dowd said he observed Carson himself driving and saw closed-circuit video of Carson walking up stairs from the garage “without apparent difficulty and without a cane.”

Besides the Social Security and salary Carson was collecting, he also got an annual disability pension for his seven years with the NYPD that is now $42,134, according to the New York City Police Pension Fund.


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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 )

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

Appeals spike.

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

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


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

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

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

Unable to engage.

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

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


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

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

Few data.

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

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

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

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

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

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

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

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

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

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

Sick or bums?

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

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

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

Highest rate

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Being Born A Man Does Not Render A Woman Disabled

Social Security Poster: old man

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

French v. Commissioner of Social Security (USA)

April 23, 2013






March 12, 2013, Decided




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

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

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


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

A. Procedural History

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

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

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

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

 Plaintiff filed this suit on June 27, 2012.

B. Medical Evidence

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

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

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

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

 ALJ Scallen
also presided over the first, abbreviated hearing,

and trans-sexual disorder/gender identity disorder.

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

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

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

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

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

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


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

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

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

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

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


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

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

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


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

C. Testimony at the Hearing Before the ALJ

1. Plaintiff’s Testimony

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

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


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

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

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


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

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

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

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

taking hormone therapy medication.

2. The Vocational Expert’s Testimony

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

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

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

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

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

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

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


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

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

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

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


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

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

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

application of a five-step sequential analysis:

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

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

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

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

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

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

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

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

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

Cir. 1994).

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

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


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


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

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

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


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

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


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

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

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


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

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

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

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


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

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

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

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


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

B.  Severe Impairments

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

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


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

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

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


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


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


s/Laurie J. Michelson



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

The Judge And His Husband

Border Guards Picked on the Wrong Judge And His Husband


May 20, 2013

LOS ANGELES (CN) – An administrative law judge (ALJ) for the NLRB and his husband sued U.S. Customs and Border Protection for $3 million, claiming an officer asked to see their marriage certificate at the border, and assaulted them when they complained.

 William Kocol and Timothy Gajewski sued Several Unnamed U.S. Customs and Border Protection Officers in Federal Court, alleging assault and battery, unlawful detention, slander, intentional infliction of emotional distress, and constitutional violations.


English: CBP Officer badge

English: CBP Officer badge (Photo credit: Wikipedia)

l, an administrative law judge (ALJ) for the National Labor Relations Board (NLRB), and Gajewski, an architect, were legally married in Beverly Hills in 2008.

English: Color logo of the National Labor Rela...

English: Color logo of the National Labor Relations Board, an independent agency of the United States federal government. (Photo credit: Wikipedia)

They claim that CBP officers singled them out in December 2012 at Los Angeles International airport after a trip to Puerto Vallarta, Mexico.

After Kocol handed a Customs officer a Customs card “indicating that he was the ‘head of household,’ and was traveling with one family member,” the plaintiffs say they were asked to explain their relationship.

“Plaintiff Gajewski said ‘husband’ and then plaintiff Kocol also said ‘husband,'” the complaint states.

The officer “shook his head in disapproval and after a few seconds plaintiff Kocol said, ‘Yes, this was California and we are legally married,'” according to the complaint.

The officer asked to see their marriage certificate, and refused to allow them to enter the United States, the couple says.

“At that point plaintiff Kocol asked to see his supervisor and plaintiff Gajewski said that he was sure that CBPO ‘A’ does not ask a straight married couple to produce a copy of their marriage certificate,” the complaint states.

The plaintiffs say the officer motioned for the next man and woman in line to step forward. Kocol and Gajewski protested, and were soon surrounded by five armed CBP officers and separated.

Kocol claims that one of the officers “put his right hand against plaintiff Kocol’s upper back, grabbed his left hand and began to forcefully push him into the room.”

Inside the room, the officer “twisted him around and pushed him down into a row of chairs, to his great personal discomfort,” the complaint states.

Gajewski told CBPO Officer D: “‘This is bullshit; do you treat every married couple this way?’ ‘This is my government being homophobic.'”

When Gajewski walked toward the room where Kocol was detained, the CBP officer “grabbed his wrist and twisted it backwards behind his back,” the complaint states.

The defendants returned Gajewski’s and Kocol’s passports after Kocol told them he was a federal judge, and that he intended to contact the Human Rights Campaign, and the Gay and Lesbian Center.

The plaintiffs say the officer who eventually processed their passports apologized, and told them: “‘Some people can’t seem to change with the times.'”

They seek more than $1 million in general damages, and more than $2 million in punitive damages.

They are represented by Scott McKee of West Hollywood.  

Categories: American History | Tags: , , , , , , , , , , | Leave a comment

Social Security Judges Sue Their Commissioner Claiming Unfair Labor Practices

Social Security’s disability program is overwhelmed by so many claims that judges sometimes award benefits they might otherwise deny just to keep up with the flow of cases, according to a lawsuit filed by the judges themselves. This practice is referred to as “paying down the backlog”.


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 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.

                                        (Marilyn Zahm and Randy Frye)

‘‘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.

Commissioner Astrue’s story has not changed much, if at all, since he appeared before Congress in May 2007 and April 2008. (His statements and testimony are recorded in detail in my book, socialNsecurity, beginning at page 443. Available at

He is still blaming the judges, asking for more money, more judges, and more time to reduce the backlog. Since 2007 the number of judges has gone from 1200 to 1500 and the backlog continues to grow. And Mr. Astrue continues to make excuses.

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.

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

Mr. Astrue wants to have it both ways. “I find it interesting that there is so much wringing of the hands about a judge who pays almost 100% of his cases, as if the agency didn’t know about it, as if the agency wasn’t complicit in it, as if the agency didn’t encourage it,” said Marilyn Zahm, a Social Security judge in Buffalo, 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

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

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

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

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

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

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

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

Just 4 years ago in the middle of the economic downturn there were 1200 ALJs. Today there are upwards to 1500 according to Michael Astrue. The backlog of cases waiting to be heard has not decreased, despite pressure from Mr. Astrue to force the ALJs to “pay down the backlog“. Yet, Mr. Astrue kept hiring more judges at $167 thousand a year.

Former Commissioner Astrue could be vague in his testimony before Congress. We can be specific as to who the ALJs are and how many cases they decide each month and their reversal rates.


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


                                                             (Carolyn Colvin)

The lawsuit was filed by the AALJ and three judges on April 18, 2013 in Federal District Court in Chicago. It names the agency and Acting Social Security Commissioner Carolyn Colvin as defendants. Colvin took over in February after Commissioner Michael Astrue’s six-year term expired.

 In an interview, Former Commissioner Michael  Astrue disputed the union’s claims.

                                                          (Michael Astrue)

Social Security’s disability program is overwhelmed by so many claims that judges sometimes award benefits they might otherwise deny just to keep up with the flow of cases, according to a lawsuit filed by the judges themselves. This practice is referred to as “paying down the backlog”.

“What’s really happening here is that the judges’ union doesn’t want accountability of its members and it’s been trying to sell this story to the media and to the Congress and to the agency for a very long time,’’ Astrue said. ‘‘And no one’s buying it because it’s not true, and no federal judge is going to buy this story, either.’’

‘‘There are a very small number of malcontents who want to litigate or put political pressure on the agency rather than do their work,’’ Astrue said.

The union represents 1,400 administrative law judges. Its lawsuit describes a disability system in crisis.

About 3.2 million people applied for disability benefits last year, a 25 percent increase from a decade before. Claims have increased in part because of aging baby boomers. As people get older, they become more prone to disabilities.

Disability claims also typically increase when the economy sours. Some people who manage to work despite their disabilities get laid off and apply for benefits, while others apply out of economic desperation.

When people apply for Social Security disability benefits, their cases are initially reviewed by the State Disability Determination Service (DDS), which reject most claims. If your claim is rejected, you can appeal to an ALJ. But the hearing process takes an average of 373 days — a little more than a year — according to agency statistics.

Astrue said the average processing time for a hearing peaked at 542 days shortly after he took over the agency. He said public outcry over the “backlog” led him to adopt productivity (that is, assign quotas) standards in 2007, which helped reduce the wait time (that is, forced ALJs to “pay down the backlog”).

The hearing process, which is closed to the public, is different from a civil lawsuit or a criminal trial. There is no lawyer for the government. Instead, judges are expected to be impartial decision-makers while protecting the interest of taxpayers and ensuring that applicants get fair hearings. Most applicants have legal representation by the time their claim results in a hearing.

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.

See (

Frye said he has never awarded benefits just to clear a case faster, and he couldn’t name any judges who have.

‘‘It’s hard for anyone to say a judge is willingly deciding cases incorrectly just to meet the quota,’’ Frye said. ‘‘What they have told us is they are not reviewing all of the evidence, they are not developing the case as they should, and from that I think you can clearly see that the case may not be or could not be correctly decided.’’

The lawsuit says case quotas violate judges’ independence and deny due process rights to applicants.

‘‘Some ALJs respond by tending to grant more claims,’’ the lawsuit says. ‘‘For other ALJs, the quota impedes their ability to render carefully reasoned, impartial decisions based on a fully developed factual record.’’

The lawsuit alleges that ALJs are expected to meet their quotas, regardless of how complicated their cases are, even though many case files exceed 500 pages. ALJs have been disciplined for missing the quota, including receiving formal reprimands and facing removal proceedings, according to the lawsuit.

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

In 2011, Social Security disability paid about $129 billion in benefits.


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

A Judge Must Be Fair And Unbiased

All Social Security Administration (SSA) Admin Law Judges must fulfill their duties with fairness and impartiality. Statements and actions by any Judge that displays unfairness, prejudice, partiality, bias, misconduct, or discrimination undermine public trust and confidence in the administrative process. All SSA ALJs perform an essential role in ensuring that our administrative process is fair to claimants by conducting fair and unbiased hearings and issuing decisions for claimants who are dissatisfied with Agency determinations in claims arising under the Social Security Act.Background: Statements and actions by our adjudicators that display unfairness, prejudice, partiality, bias, misconduct, or discrimination undermine public trust and confidence in our administrative process. Our ALJs perform an essential role in ensuring that our administrative process is fair to claimants by conducting de novo, informal, non-adversarial hearings and issuing decisions for claimants who are dissatisfied with our determinations in claims arising under the Social Security Act. All adjudicators, including our ALJs, must fulfill their duties with fairness and impartiality. We have three separate processes to guard against unfairness in our hearing process: (1) The Appeals Council review process, under which we review hearing decisions in accordance with 20 CFR 404.969, 404.970, 416.1469 and 416.1470, to ensure that ALJs fairly and impartially consider claims for benefits; (2) the Division of Quality Service’s ALJ complaint investigation process; and (3) the civil rights investigation process for allegations of discrimination involving unfairness, prejudice, partiality, or bias based on race, color, national origin (including English language ability), religion, sex, sexual orientation, age, disability, or in retaliation for having previously filed a civil rights complaint. These three processes operate separately from one another and have different focuses. Claimants, parties, and the public may avail themselves of any or all three of the processes, as applicable, and all three processes may occur concurrently.


Social Security Ruling, SSR 13-1p; Titles II and XVI: Agency Processes for Addressing Allegations of Unfairness, Prejudice, Partiality, Bias, Misconduct, or Discrimination by Administrative Law Judges (ALJs).

SUMMARY: In accordance with 20 CFR 402.35(b)(1), the Commissioner of Social Security gives notice of Social Security Ruling, SSR-13-Xp. This Ruling explains the three separate vehicles we have for addressing complaints of unfairness, prejudice, partiality, bias, misconduct, or discrimination by an administrative law judge (ALJ). First, the Ruling describes the procedures that the Office of Disability Adjudication and Review’s (ODAR) Appeals Council follows when it receives such allegations in the context of claim adjudication. Next, the Ruling describes how ODAR’s Division of Quality Service reviews or investigates such complaints outside of the claim adjudication process to determine whether ODAR should take any administrative or disciplinary action with respect to the ALJ. Finally, the Ruling describes how the public may file with us complaints of discrimination based on race, color, national origin (including English language ability), religion, sex, sexual orientation, age, disability, or in retaliation for having previously filed a civil rights complaint against the agency. This Ruling supersedes our prior Notice of Procedures: Social Security Administration Procedures Concerning Allegations of Bias or Misconduct by Administrative Law Judges, 57 FR 49186 (October 30, 1992).


Through SSRs, we make available to the public precedential decisions relating to the Federal old-age, survivors, disability, supplemental security income, special veterans benefits, and black lung benefits programs. SSRs may be based on determinations or decisions made at all levels of administrative adjudication, Federal court decisions, Commissioner’s decisions, opinions of the Office of the General Counsel, or other interpretations of the law and regulations.

Although SSRs do not have the same force and effect as statutes or regulations, they are binding on all of our components. 20 CFR 402.35(b)(1).

This SSR will be in effect until we publish a notice in the Federal Register that rescinds it, or publish a new SSR that replaces or modifies it.

Purpose: This Ruling clarifies the three separate processes we have for addressing allegations of unfairness, prejudice, partiality, bias, misconduct, or discrimination by an ALJ.

Citations (Authority): Sections 205(b), 809(a), and 1631(c) of the Social Security Act, as amended; Regulations No. 4, subpart J, sections 404.940, 404.967, 404.969, and 404.970, Regulations No. 5, subpart A, sections 405.25 and 405.30, and Regulations No. 16, subpart P, sections 416.1440, 416.1440, 416.1467, 416.1469, and 416.1470.


In this Ruling, we explain these three different processes and emphasize that:

1. The Appeals Council has authority under 20 CFR 404.970 and 416.1470 to act when a party is dissatisfied with a hearing decision or dismissal of a hearing request. Even when a party does not request review, the Appeals Council may initiate review under 20 CFR 404.969 and 416.1469. The Appeals Council considers allegations of unfairness, prejudice, partiality, or bias by ALJs under the standards for review in 20 CFR 404.970 and 416.1470. The Appeals Council may also consider objections from a party stating why a new hearing should be held before another ALJ pursuant to 20 CFR 404.940 and 416.1440. In evaluating such allegations, the Appeals Council considers only the evidence contained in the claimant’s administrative record. The Appeals Council’s process is the only process set forth herein that allows a claimant to obtain a remedy on the claim for benefits.


2. The Division of Quality Service may review and, if warranted, investigate any complaints against an ALJ, including allegations of unfairness, prejudice, partiality, bias, or misconduct. Under this process, the Division of Quality Service evaluates allegations to determine whether it is necessary to recommend administrative or disciplinary action against an ALJ.

3. Individuals who allege discrimination based on their race, color, national origin (including English language ability), religion, sex, sexual orientation, age, disability, or in retaliation for having previously filed a civil rights complaint, may also file a separate discrimination complaint with us using our civil rights complaint process.

Policy Interpretation

Allegations of Unfairness, Prejudice, Partiality, Bias, or Misconduct Evaluated in the Appeals Council Claims Review Process

The ALJ’s decision is subject to Appeals Council review under 20 CFR 404.970 and 416.1470 if the claimant or other party or his or her representative timely requests review of the ALJ’s decision. The Appeals Council may also review the ALJ’s decision on its own motion under 20 CFR 404.969 and 416.1469.

The Appeals Council will grant a party’s request for review and issue a decision or remand a case when:

* There appears to be an abuse of discretion by the ALJ;

* There is an error of law;

* The action, findings or conclusions of the ALJ are not supported by substantial evidence;

* There is a broad policy or procedural issue that may affect the general public interest; or

* There is new and material evidence submitted that relates to the period on or before the ALJ’s hearing decision, and review of the case shows that the ALJ’s actions, findings or conclusions are contrary to the weight of the evidence currently of record.


Under our regulations, an ALJ must not conduct a hearing if he or she is prejudiced or partial with respect to any party or has any interest in the matter pending for decision. A claimant or other party to the hearing who objects to the ALJ who will conduct the hearing must notify the ALJ at his or her earliest opportunity. The ALJ will then decide whether to proceed with the hearing or to withdraw. If the ALJ does not withdraw, the claimant or other party to the hearing may, after the hearing, present objections to the Appeals Council as to reasons why the hearing decision should be revised or a new hearing should be held before another ALJ.

If, in conjunction with a request for review, the Appeals Council receives an allegation of ALJ unfairness, prejudice, partiality, or bias, the Appeals Council will review the claimant’s allegations and hearing decision under the abuse of discretion standard. We will find an abuse of discretion when an ALJ’s action is erroneous and without any rational basis, or is clearly not justified under the particular circumstances of the case, such as where there has been an improper exercise, or a failure to exercise, administrative authority. For example, if the record shows that the ALJ failed to conduct a full and fair hearing by refusing to allow the claimant to testify or cross-examine witnesses, we will find that an abuse of discretion has occurred. An abuse of discretion may also occur where there is a failure to follow procedures required by law.


An ALJ also abuses his or her discretion if the evidence in the record shows that the ALJ failed to recuse himself or herself from a case in which he or she was prejudiced or partial with respect to a particular claim or claimant, or had an interest in the matter pending for decision. In this instance, we will remand the case to another ALJ for a new hearing or revise the ALJ’s decision pursuant to 20 CFR 404.940 and 416.1440.

–This is a summary of a Federal Register article originally published on the page number listed below–

Notice of Social Security Ruling (SSR).

Citation: “78 FR 6168”

Document Number: “Docket No. SSA 2012-0071”

Federal Register Page Number: “6168”


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

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