Posts Tagged With: Michael Astrue

Acting Social Security Commissioner Fails To Get Senate Confirmation Due To Possible Criminal Investigation

On February 14, 2013, Carolyn W. Colvin became the Acting Commissioner of the  Social Security Administration (SSA).  Prior to this designation, she served as a Deputy Commissioner at SSA.  Several high-level members of her inner circle of advisers are at the center of an  investigation concerning  a dysfunctional, $300 million computer system. An Inspector General’s (IG) Report has raised the possibility of a criminal investigation.

The Senate canceled vote on President Obama’s pick for Social Security Commissioner. Obama pick to head Social Security runs into more trouble; Senate cancels confirmation vote.

(AP)(14 Dec. 2014) — President Barack Obama’s pick to head the Social Security Administration has run into more trouble after Senate Democrats canceled a procedural vote on her nomination.

All 11 Republicans on the Senate Finance Committee signed a letter to Colvin on Wednesday, December 10th, noting that new information had come to light about a dysfunctional, $300 million computer system intended to speed the processing of disability claims. An interim inspector general (IG) report has raised questions about whether agency employees misled Congress about the extent of the problem, the lawmakers said.

“We cannot in good faith allow a nomination for any position that requires the advice and consent of the Senate to proceed to a vote as long as the specter of a potential criminal investigation surrounds the nominee and/or those in their inner circle,” read the letter from Utah Sen. Orrin Hatch, the top Republican on the committee, and its other GOP members.

“Agency representatives previously briefed members of the Senate and House regarding the issues raised in the Senate Republican Finance members’ letter,” the spokeswoman, LaVenia LaVelle, said in the statement. “The acting commissioner will respond timely and fully to the members requests, and continue to cooperate with Congress and any related investigation.”

Aides have long noted that the troubled computer system, which was intended to speed the processing of disability claims, was implemented under Colvin’s predecessor, Michael J. Astrue. And they have said that Colvin began a thorough investigation of the matter when she took over the agency last year.Still, the opposition from Republicans in the waning days of the lame-duck session of Congress threw Colvin’s confirmation into question. The current Congress is set to adjourn as soon as next week — and the Senate calendar will become increasingly full between now and then.

While senators have sped through several confirmations since the midterm elections, they have dealt mainly with non-controversial appointments. Colvin’s term, if she is confirmed, would last for six years, well into the next presidential administration.

And when the new Congress gavels in next month, the Senate will be controlled by Republicans, giving concerns raised by Republicans on the Senate Finance Committee added weight.Neither of Maryland’s Democratic senators, Barbara A. Mikulski and Ben Cardin, have responded to request for comment. Cardin is a member of the Finance Committee, which oversees Social Security.

The agency came under scrutiny this year amid revelations that it spent nearly $300 million and six years developing the computer system for disability claims, and it still does not work. The problems were known during Colvin’s confirmation hearing, and while Hatch mentioned them at the time he did not ask Colvin about them.

In their letter, the senators pointed to a news release from a House subcommittee last month regarding an interim IG Report that raised the possibility of a criminal investigation. The letter said the senators have sought to better understand the nature of that investigation but have been unable to do so because the probe is continuing.

“We have received information from whistleblowers that the ongoing investigation has centered around the activities of certain members of your immediate office, including several high-level agency officials, the senators wrote. “Therefore, it is essential to address your role with respect to this inquiry before each of us can make an informed decision on how to vote for your nomination once it reaches the full Senate for consideration.”

Obama nominated Carolyn W. Colvin to a six-year term as commissioner in June, and Colvin’s nomination cleared one procedural hurdle in the Senate Saturday, Dec. 13. However, Senate Majority Leader Harry Reid, D-Nev., canceled an upcoming vote, making it likely Colvin won’t get a vote until next year, when Republicans take control of the Senate.

Colvin’s nomination would have taken up valuable floor time as the Senate rushes to finish its year-end business. Senators could speed the process but that would require a bipartisan agreement.

Colvin’s nomination first ran into trouble when a group of Republican senators said they would try to block it while investigators look into a $300 million computer project at the agency.

The project, which doesn’t work, predates Colvin’s tenure — she has been acting commissioner since Feb. 2013. But an inspector general’s investigation is ongoing.

“I don’t know how the Senate can, with good conscience, vote to confirm anyone with this type of ongoing investigation going on around their immediate office,” Sen. Orrin Hatch, R-Utah, said in a floor speech. “It may very well turn out that Ms. Colvin did nothing wrong, but we need to know for sure.”

Colvin defended her integrity and her long career in government in a recent interview with The Associated Press.

“I’ve worked in government my entire life. There’s never been a suggestion, personal or professional, of any wrongdoing,” Colvin said in the interview, which had been scheduled before the controversy erupted.

“I’m certainly not ending my career with that,” Colvin continued. “I came out of retirement to help this organization, not hurt it.”

Six years ago, Social Security embarked on an aggressive plan to replace outdated computer systems overwhelmed by a flood of disability claims. But the project has been racked by delays and mismanagement, according to an assessment commissioned by the agency over the summer.

The new computer system is supposed to help workers process and manage disability claims. But the project is still in the testing phase and the agency can’t say if it will ever be operational or how much it will cost.

Colvin, 72, first worked as a deputy commissioner at Social Security in the 1990s. She left the agency in 2001 to become director of human services for the District of Columbia. She later had a similar job in Montgomery County, Maryland.

Colvin returned to Social Security in 2010 as deputy commissioner.

Associated Press

Throughout her career, Ms. Colvin has managed programs that help people with their healthcare and financial needs.  She previously held key executive positions at Social Security Headquarters: Deputy Commissioner for Policy and External Affairs (1994–1996), Deputy Commissioner for Programs and Policy (1996–1998), and Deputy Commissioner for Operations (1998–2001).

Prior to returning to SSA, Ms. Colvin was the Director of Human Services for the District of Columbia (2001-2003); the Director of the Montgomery County Department of Health and Human Services (2003-2007); the Chief Executive Officer of AMERIGROUP Community Care of the District of Columbia (2007–2008); and, the Special Assistant to the Secretary of Maryland’s Department of Transportation (2009-2011).  In addition, Ms. Colvin served as the Secretary of Maryland’s Department of Human Resources (1989-1994).

Ms. Colvin has received numerous awards and recognition for her managerial expertise and creativity, including Maryland’s Top 100 Women Award from the Daily Record (2005) and the Women of Achievement Award from Suburban Maryland Business and Professional Women (2005).  She has served on a variety of boards and commissions, including the National Committee to Preserve Social Security and Medicare.

Ms. Colvin earned her graduate and undergraduate degrees in business administration from Morgan State University.  Additionally, she completed the Senior Executives in State and Local Government Program at Harvard University, the Maryland Leadership Program, and the Greater Baltimore Leadership Program. Ms. Colvin is from Maryland and currently resides in Anne Arundel County.  She has one son and six grandchildren.

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Illegal Immigrants, Social Security Benefits, and The Freedom Of Information Act

The seal of the United States Department of He...

The seal of the United States Department of Health and Human Services. The symbol represents the American People sheltered in the wing of the American Eagle, suggesting the Department’s concern and responsibility for the welfare of the people. The colors are reflex blue and gold. This seal is now just used for mainly legal purposes; the department has a separate logo which is used for its visual identity. More information here and here. (Photo credit: Wikipedia)





Civil Action No. 11-1387 (JEB). 


United States District Court, District of Columbia. 



April 6, 2012.


U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendant, represented by Fred Elmore Haynes, U.S. ATTORNEY’S OFFICE.
SOCIAL SECURITY ADMINISTRATION, Defendant, represented by Fred Elmore Haynes, U.S. ATTORNEY’S OFFICE.




JAMES E. BOASBERG, District Judge.
Plaintiff Raul Rodriguez-Cervantes, a federal prisoner incarcerated in Post, Texas, brings this pro se suit under the Freedom of Information Act, 5 U.S.C. § 552. In so doing, Plaintiff seems to have put the cart before the horse. Plaintiff has brought a FOIA suit before first having his FOIA request denied. Indeed, he has brought a FOIA suit before even submitting a FOIA request. As such, the Court will grant Defendants’ Motion for Summary Judgment and dismiss the case without prejudice.
I. Background
On December 15, 2010, Plaintiff sent a letter to Defendant Social Security Administration (SSA) seeking assistance regarding applying for social security benefits.  The letter stated in relevant part:
I worked in the United States for about 15 years and always paid my social security deductions. Now I am a federal prisoner and upon the expiration of my sentence I will be removed to Mexico, my native country. At this time, I would like to know if there is any way/application to get my social security benefit before the age established by the S.S. policies. My question is due to the fact that I will be deported from this country and I do not know whether I should have a relative or friend in this country (which I do not have) to get those benefits or I should file some forms to get it in advance of the age required by the S.S. Administration.

SSA responded with a standard form letter in which it informed Plaintiff that “[n]either Social Security benefits not SSI payments are payable to prisoners just because they are being released or because they have been in prison.” In addition to providing Plaintiff with a phone number to call if he wished to file for social security benefits, SSA enclosed in the letter two brochures entitled “Social Security: What Prisoners Need To Know” and “Social Security: Entering The Community After Incarceration—How We Can Help.” 
On April 8, 2011, Plaintiff sent another letter to SSA stating:
This is a request for Social Security Disability Benefits.
In suport of my request, a deportation from the United States will be executed as soon as my current sentence be completed. The term of deportation is undefined. Although, my age is not the required in accordance with the proceedings, however, there is undisputable that a deportation will satisfy more than the necessary disability [sic].
Accordingly, please provide me with the necessary information in order to proceed with my request.
According to Plaintiff, on April 20, 2011, the agency responded with “an identical letter as the [prior one].”
Finally, on May 12, 2011, Plaintiff sent yet another letter to SSA stating:

I am an inmate incarcerated at the Giles W. Dalby Correctional Facility in Post, Texas. Since I can’t visit your office in Lubbock and I have no access to a computer, I am requesting that you please send me an application so that I may apply for my social security benefits.
Opp., Exh. 2 (Plaintiff’s Letter). This time, SSA responded with “Social Security Earnings Information,” and Plaintiff was informed that SSA was “returning [his] request for information from [his] earnings record” because “[i]n light of the current budget situation, [SSA has] suspended the Request[-]a[-]Social[-]Security[-]Statement service.” Opp., Exh. 1 (SSA Letter). Plaintiff was, however, given the option to go online to estimate his retirement benefits using SSA’s online Retirement Estimator. Id.
No other record exists of Plaintiff’s seeking to obtain information from SSA. Plaintiff has nonetheless brought this FOIA suit seeking the “disclos[ure] . . . [of] his entire record as maintained within the System of Records of the Social Security Administration Office on December 15, 2010, together with any other records pertinent to the said request.” Before the Court now is Defendant’s Motion for Summary Judgment.
II. Legal Standard
Summary judgment may be granted if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”  “A party asserting that a fact cannot be or is genuinely disputed must support the assertion by citing to particular parts of materials in the record.” The moving party bears the burden of demonstrating the absence of a genuine issue of material fact.  “[A] material fact is `genuine’ . . . if the evidence is such that a reasonable jury could return a verdict for the nonmoving party” on an element of the claim. Factual assertions in the moving party’s affidavits or declarations may be accepted as true unless the opposing party submits his own affidavits, declarations, or documentary evidence to the contrary. 
FOIA cases typically and appropriately are decided on motions for summary judgment. In a FOIA case, the Court may grant summary judgment based solely on information provided in an agency’s affidavits or declarations if they are relatively detailed and when they describe “the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.” Such affidavits or declarations are accorded “a presumption of good faith, which cannot be rebutted by `purely speculative claims about the existence and discoverability of other documents.'” 
III. Analysis

The sole basis for Plaintiff’s FOIA claim seems to be that SSA did not produce “his entire record as maintained within [SSA’s] System of Records” in response to his December 15 letter, which merely requested “to know if there is any way/application to get my social security benefits before the age established by the S.S. policies.” The natural question raised by this claim is whether the December 15 letter—or indeed any of Plaintiff’s other letters to SSA—somehow amounts to a FOIA request. Although common sense offers an answer to this question, the Court will probe further.
A valid FOIA request must (i) “reasonably” describe the records sought and (ii) must be made “in accordance with [the requested agency’s] published rules stating the time, place, fees (if any), and procedures to be followed.” [s] specifically to the FOIA.”  Importantly, “an agency’s obligations commence upon receipt of a valid request; failure to file a perfected request therefore constitutes failure to exhaust administrative remedies.” And, as is well settled, a FOIA suit cannot be sustained where the plaintiff has failed to exhaust his administrative remedies. (“It goes without saying that exhaustion of remedies is required in FOIA cases.”)). Since SSA requires that all FOIA requests actually “ask for records,” any purported request that does not do so is invalid. A requester that fails to ask for records, therefore, fails to exhaust his administrative remedies.
Even if given the liberal interpretation that Plaintiff urges, his December 15 letter is by no means a FOIA request, and the circumstances plainly suggest he did not intend it to be one. Plaintiff’s letter contains no explicit or even implicit request for the production of any records. Indeed, in his own words, Plaintiff characterizes the letter as one “seeking assistance for benefits under the grounds of his deportation.” In addition, neither of Plaintiff’s two other letters to SSA was a FOIA request or anything that could be liberally construed to amount to a request for records. Plaintiff requests information about how to apply for social security benefits, asks whether or not he qualifies for those benefits given his circumstances, and seeks an application for social security benefits. He does not, however, request the production of records. As his letters merely pose questions to SSA or ask for assistance in applying for social security benefits, they do not constitute valid FOIA requests. Whether or not Plaintiff was satisfied by the responses to his questions or the level of assistance he was receiving, a FOIA suit is not the proper means by which to obtain a different response.
Finally, the fate of Plaintiff’s suit is sealed with his concession that “there may not have record of a freedom information request, but, however there his request for benefits [sic].” Plaintiff himself admits that he has no FOIA request before SSA. He has, therefore, brought a FOIA suit without first filing a FOIA request and exhausting available remedies. It cannot survive.
The Court last notes that Plaintiff’s objective throughout may simply be to acquire an application for social security benefits. To that end, Defendant has offered to arrange for Plaintiff to request a copy of his earnings record and to provide him with an application for benefits. The Court appreciates the assistance.
IV. Conclusion
As the Court finds that Plaintiff has failed to exhaust his administrative remedies, the Court will grant Defendant’s Motion for Summary Judgment. A separate Order consistent with this Opinion will issue dismissing the case without prejudice.


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Social Security Judges Operate With Virtually No accountability

A Congressional Report from the House Ways and Means Committee  Confirms Social Security Judges Operate with Virtually No Oversight or Accountability.

Washington, DC – The Office of Inspector General (OIG) issued the second of a two-part report identifying Administrative Law Judges (ALJ) who are considered outliers because of the number of their disability decisions rendered either favorable or unfavorable.  The report comes in response to a June 16, 2011 bipartisan request from Members of the Ways and Means Social Security Subcommittee asking the Social Security Administration’s (SSA’s) Inspector General to review ALJ workloads, adherence to Agency policies and procedures, and quality reviews.  The Members made that request in the wake of a Wall Street Journal article exposing the practices of a West Virginia ALJ who granted awards in 1,280 of the 1,284 disability cases he handled.

Social Security Subcommittee Chairman Sam Johnson (R-TX) said, “ALJs are supposed to be making their decisions on behalf of the Commissioner of Social Security, but this report confirms that ALJs operate with virtually no oversight and no accountability.

“On review, Social Security disagreed with 1 out of 7 ALJ awards but couldn’t reverse those decisions.  What kind of a process allows a bad decision to stand because the decision-maker can’t be challenged? That’s just not right.  Given that the Social Security Disability Insurance program will become insolvent in just a few short years, it is more important than ever that we protect taxpayers and ensure that the program pays benefits only to those who are truly disabled.”



The key findings of the report, “Congressional Response: The Social Security Administration’s Review of Administrative Law Judges’ Decisions” are summarized below:

The Administrative Procedures Act (APA) prevents an agency from improperly influencing an ALJ’s decision and protects ALJ decisional independence.  However, ALJs must follow agency regulation, policy, and procedure in making decisions.  Under the law, the agency may not review the decisions of a specific ALJ before their decisions are processed (such reviews are referred to as pre-effectuation reviews).

Reviews after a decision is processed, or post-effectuation reviews, along with special studies may target the decision of a specific ALJ based on anomalies in productivity or allowance rates.   Based on these reviews, the SSA can issue directives to an ALJ for policy compliance; take disciplinary action; or identify training needs to bring ALJs more closely into alignment with Agency policies and procedures.

Recently, the SSA conducted three types of reviews of ALJs’ decisions. Two of these involve a selected sample of cases to determine if regulations, policies, and procedures have been followed and also to identify training needs.  The third was a series of special post-effectuation studies based on anomalies of decisions by seven ALJs that came to the SSA’s attention.  Out of these special studies performed, one ALJ was identified as not following polices and procedures, was corrected, and became compliant.

The OIG concluded that the SSA has authority to review ALJ decisions but faces legal restrictions in conducting those reviews. Changes to current law would be needed to allow the SSA to review and correct decisions of specific ALJs based on unusually high or low allowance rates.

Social Security Judges are under fire from Congress which recently discovered how much they are paying out in benefits. In a recent series of articles in the Wall Street Journal and other media, judges are being focused on for approving every disability case that comes before them.;;;; ).” target=”_blank”>(;;;;; ). Some in Congress are wondering why we need to pay a judge $167,000.00 a year to rubber-stamp every case that comes before him. A lawyer at the GS-9 level making $40,000.00 a year or less could do the same and save millions of dollars a year. The Law of Averages says that even a trained chimpanzee would be right about half the time, and he would work for peanuts.

Americans seeking Social Security disability benefits will often appeal to one of 1,500 administrative law judges (ALJ) who help administer the program. In the first half of 2011, 27 ALJs awarded social security benefits 95% of the time because of pressure from Commissioner M. Astrue. Nationwide over 100 ALJs are approving 9 out of every 10 cases that come before them. The cases they fail to approve are likely to be approved by the Appeals Council, which works for the Commissioner. Senate and House Committees are investigating the issue. Approving all cases without even reviewing the file is called “paying down the backlog”. Judges are under pressure to move cases quickly in order to clear a backlog of 730,000 pending cases. The pressure comes directly from the Commissioner of Social Security. This is one of the things that I discuss in detail in the book “socialNsecurity”, available at

I put it in proper perspective. Having spent about 20 years observing the competing forces that produce a judge who reverses 100% of his cases, while another reverses less than 10%, I have a better handle on this issue than a reporter who writes a sensational article. Much of my insight and explanation of the competing forces is spelled out in my book “socialNsecurity, Confessions of a Social Security Judge”. Anyone looking for more historical and recent statistics on this subject along with an explanation of how the system works can find easy readable information in my book.

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