Posts Tagged With: Michael J. Astrue

When Will SSA Get A Real Commissioner, If Ever?

On January 23, 2017, Nancy A. Berryhill became the Acting Commissioner of Social Security, with responsibility for overseeing one of the nation’s largest and most important domestic programs. (When will SSA get a real Commissioner? President appointed only Acting Commissioners.)

                                                                                                                  

 With a $12 billion budget and almost 64,000 employees serving in more than 1,500 offices across the country and around the world, plus 16,000 State employees making disability determinations, the Social Security Administration issues more than $960 billion in payments to nearly 66 million people each year.

Previously, Ms. Berryhill served as the Deputy Commissioner for Operations, Social Security’s largest component, where she successfully implemented many expanded service delivery options for the public. Prior to that position, Ms. Berryhill served two years as the agency’s Regional Commissioner for the Chicago Region and five years as Regional Commissioner for the Denver Region. In Denver, she developed numerous innovative, mission-focused initiatives such as video service delivery, use of webinar technology, and the creation of the first American Indian outreach guide.

Ms. Berryhill began her Social Security career as a GS-2 student employee. In her 40 years at the agency, she has held many frontline positions, including Claims Clerk, Service Representative, Claims Representative, Operations Supervisor, District Manager, and Area Director for the State of Illinois.

Ms. Berryhill has received numerous agency awards, including the Commissioner’s Citation, the agency’s highest recognition. In 2010, she received the Presidential Rank Award of Meritorious Executive, and in 2015, she received the Presidential Rank Award of Distinguished Executive, the highest honor awarded career executives in the Federal Government. Her work and achievements consistently demonstrate professional excellence, exceptional leadership, integrity, and commitment to public service.

A native of Chicago, Illinois, Ms. Berryhill obtained her degree in Computer Science at the Control Data Institute in Chicago. She is a graduate of the Kennedy School of Government at Harvard University.

PREVIOUS ACTING COMMISSIONER:

Meet The New Acting Commissioner Of THe Social Security Administration, Carolyn Colvin.

                                                                                                             

On February 14, 2013, Carolyn W. Colvin became the Acting Commissioner of Social Security.  Prior to this designation, she served as the Deputy Commissioner, having been confirmed by the United States Senate on December 22, 2010 as President Obama’s nominee.  In addition to her role as the Acting Commissioner of Social Security, Ms. Colvin serves as a Trustee to the Social Security Board of Trustees.

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.

 https://judgelondonsteverson.me/2013/01/14/who-will-president-obama-select-to-be-the-new-commissioner-of-the-social-security-administration/

Who Will President Obama Select To Be The New Commissioner Of The Social Security Administration?

Michael Astrue

Michael J. Astrue was sworn in as Commissioner of the Social Security Administration (SSA) on February 12, 2007 for a six-year term that expires on January 19, 2013. President Barack Obama is expected to soon nominate a new Commissioner of the Social Security Administration. Astrue was appointed by President George W. Bush. The White House is silent about who will take the helm at SSA.  The SSA faces voluminous backlogs and claimants may have to wait up to 5 years just to get a hearing before an Administrative Law Judge (ALJ). Some extreme cases have taken more than 10 years from the date of filing a claim to get a final decision on whether they are entitled to disability retirement benefits.

Social Security Commissioner Michael J. Astrue’s six-year term expires January 19, 2013. His successor must be confirmed by the Senate, in a process that Sen. Ben Cardin, a Maryland Democrat, expects will take a couple of months from the hearings to a vote.

Michael Astrue was still Commissioner of Social Security on 25 January. His term ran out on January 19 but the Social Security Act says he can stay in his job until a successor is confirmed. He hasn’t resigned so he’s still Commissioner. The same is true for Deputy Commissioner Carolyn Colvin. The rumor had been that Astrue did not intend to stay on after his term ended.  So far, he’s proving that rumor wrong. Astrue does seem to be clearing items off his desk. Take a look at what he just sent over to the Office of Management and Budget. I wonder if he’s planning to send over his version of new mental impairment listings before leaving.

The SSA has more than 11,000 employees at its headquarters in Woodlawn, Maryland. It provides benefits to retirees, disabled Americans and the children of deceased workers. The SSA paid more than $778,000,000,000 (that is billion) in benefits to 56 million people. The SSA’s budget rivals that of the Department Of Defense.

Carolyn Colvin is Astrue’s Deputy, but she is not considered to be a serious contender to replace him. She was confirmed by the Senate two years ago. Her term also expires January 19, 2013. She is a former secretary of the state Department of Human Resources and served as special assistant to Maryland’s Secretary of Transportation.

One possibility that comes to mind is that there will never be an announcement of an Obama nominee for Commissioner of Social Security. Astrue will leave the job in the near future and Carolyn Colvin will become the Acting Commissioner for the rest of Obama’s term as President. Colvin as Acting Commissioner, unlike Astrue and unlike a nominated and confirmed Commissioner of Social Security, would be serving at the President’s will. If Colvin displeased the President, she could be removed from the job by Obama nominating and the Senate confirming a Commissioner. I think it is more than possible that the President has had his fill of an independent Social Security Commissioner and wants someone who is truly on his team. I have no inside information. This is just my speculation. Of course, this can’t happen if Astrue keeps hanging around.

(BIOGRAPHY of Catolyn Colvin)

QUOTE: On February 14, 2013, Carolyn W. Colvin became the Acting Commissioner of Social Security.  Prior to this designation, she served as the Deputy Commissioner, having been confirmed by the United States Senate on December 22, 2010 as President Obama’s nominee.  In addition to her role as the Acting Commissioner of Social Security, Ms. Colvin serves as a Trustee to the Social Security Board of Trustees.

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. UNQUOTE.

Nancy Altman, who helps lead two Social Security advocacy groups, has emerged as a potential contender. She has been endorsed by the AFL-CIO and the Association of Administrative Law Judges (AALJ), a network of 1,400 ALJs who decide disability insurance claims. The endorsement of the AALJ is the kiss of death; so, she cannot really be considered a serious contender for the job.

Nevertheless, Judge Randall Frye, president of the AALJ, has  said the AALJ is backing Ms. Altman for Commissioner because of her expertise.

For her part, Ms. Altman has said “My goal would be to restore confidence in the agency and to let the workforce know how appreciative I am and the American people are for the work that is being done.”

One of the major challenges the next commissioner will confront is building administrative support to decrease the long backlogs in the disability insurance program. This is something that Commissioner Astrue was not able to accomplish despite all of the ALJs he was allowed to place on the federal pay roll and the increase in budget that he was granted. The new Commissioner will also be challenged to improve the quality of service that SSA employees are reputed to provide to the public.  Case workers and administrative staff members at SSA are notorious for their abrupt manners and surly attitudes resulting in a low level of public service. The Agency will be challenged to provide a higher level of service.

Senator Ben Cardin, a Maryland Democrat, was noted to remark that “This is an opportunity at the Social Security Administration to really take it to the next level, and it’s important to make sure it has the resources it needs”.

James Robinson Jr.

My choice for the next Commissioner is something of a dark horse. He is James Roosevelt Jr. He is a Health Care Insurance man and considering the controversy surrounding the implementation of ObamaCare, he would be a natural choice for President Obama for his 2nd term.

President Obama’s reelection lifted much of the cloud that hung over the health care industry in Massachusetts, where caregivers and insurers anticipated a push to repeal the national health care overhaul if Mitt Romney had become president. But Romney was not elected.

“This outcome provides an opportunity for greater cooperation and less contention,” said James Roosevelt Jr., chief executive of Tufts Health Plan.

But health care organizations are still seeking clarity on many features of ObamaCare, also known as the Affordable Care Act, many of which have not yet taken effect. The federal overhaul includes regulations requiring insurers to invest in new technology and funds for expanding Medicaid and revamping Medicare payments as the states press forward with their own efforts to rein in costs and build more integrated health care networks.

Obama’s victory “removes a layer of uncertainty for health plans, providers, and employers,” said Andrew Dreyfus, chief executive of Blue Cross Blue Shield of Massachusetts, the state’s largest health insurer.

In 2012 James Robinson Jr wrote an op-ed with Robert L. Reynolds, a Republican and CEO of Putnam Investments,  where he advocates raising the Social Security retirement age at a brisker pace and cutting back the growth of benefits with a different Consumer Price Index (CPI).

Robinson wrote “.. we should accelerate the rise in Social Security’s full-benefit retirement age from age 67 to 68 by 2030 and then index the full benefit age for future generations to gains in longevity. Life expectancy past age 65 has risen nearly 50 percent since 1940, when Social Security first began regular monthly payments. That said, we should improve disability options for those engaged in physically demanding jobs. No one expects coal miners or telephone line crews to work into their late 60s.”

He went further to say “On the benefits side, we should change the way we calculate the cost-of-living adjustment for all beneficiaries, by utilizing a revised Consumer Price Index which most economists agree more accurately reflects the rate of inflation for the expenses most seniors incur. Such a change would curb the rate of increase in benefits for future generations of retirees […]”

Considering President Obama’s attitude and behavior with respect to the “Fiscal Cliff” negotiations I am betting he will select James Robinson Jr to be the next Commissioner of the Social Security Administration.

This just in from former Democratic Senator Bill Bradley of New Jersey.

The press and public have understandably focused in recent weeks on high-profile appointments such as the secretaries of state, defense and treasury as President Barack Obama builds his second-term team. They also should pay close attention to the search for a man or woman to serve as commissioner of the Social Security Administration — a post central to the national welfare and, with a six-year term, an appointment that will continue into the next presidency.

The Social Security Administration, headquartered just outside Baltimore in Woodlawn, touches the lives and pocketbooks of nearly every American. With this cornerstone of our social compact under demographic pressure and political threat, the president’s choice for a successor is vitally important.

Washington is a land of partisan extremes these days, a place where compromise is an orphan and dealmakers are a rare sight. Inevitably, Social Security will again be a political football as Congress attempts to manage America’s fiscal challenges. As a veteran of more than a few policy debates and political fights — some of which didn’t end the way I’d have liked — I want suggest what I think are key job requirements for the new commissioner:

•The nominee should bring substantial managerial experience. The Social Security Administration has roughly 62,000 employees. The agency processes payments of $4.5 billion to 6 million recipients every month. It needs a strong CEO capable of running a large and complex organization that does high-stakes work.

•The nominee should bring considerable policy expertise. For more than 20 years, actuaries have battled, often very publicly, over the viability of Social Security’s funding mechanism. It would be profoundly foolish today to ignore the demographic challenges the retirement of baby boomers will pose to the system. The remedy should not be a Band-Aid, but structural reform for the long haul.

The next commissioner, unlike some predecessors, should bring to the job a detailed historical knowledge of Social Security — of decisions that have made the system stronger and of others that have weakened it.

•Diplomatic skills will be essential. The commissioner of Social Security will need to deal not only with criticism from his or her natural political opponents but also with substantial pressure from natural allies. A commissioner perceived as a zealot or out of touch with the private sector will have a hard time advancing arguments for a new structure of benefits or changes to Social Security’s long term funding.

•The commissioner of Social Security needs considerable fortitude. One of the most important aspects of the job is appearing before Congress (approximately four times a year, though the frequency can shift). For at least the next two years, that will mean confronting a Republican-controlled Congress whose leadership lives in fear of tea partiers whose rhetoric would suggest they’d like to see Social Security dismantled altogether. The next commissioner of Social Security will need the strength of will and command of facts necessary to stand toe-to-toe with well-prepared congressional foes.

•Finally, the next commissioner will have to be someone passionately dedicated to the principles that underlie the Social Security system and eloquent in articulating those principles.

The vast majority of Americans want a fair system that offers dignity to the elderly while preserving economic opportunity for current and future workers. They deserve a commissioner who can ensure Social Security operates properly, provide a vision for its long-term future and lead the fight to preserve it from political critics or demographic threats.

(Bill Bradley)

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Psychologist In SSA $550 Million Fraud Case Sentenced

Adkins gets 25 years, $93M in fines

 A Pikeville, Kentucky, psychologist’s involvement in disgraced former Attorney Eric Conn‘s $550 milion Social Security fraud scheme and rejection to take a plea deal will cost him 25 years behind bars and more than $93 million in fines, the U.S. Department of Justice announced September 22, 2017.

Doctor Alfred Bradley Adkins (PHd), 46, was sentenced by Lexington-based U.S. District Judge Danny C. Reeves of the Eastern District of Kentucky after a jury found him guilty of one count of conspiracy to commit mail and wire frauds, one count of mail fraud, one count of wire fraud and one count of making false statements after a June 2017 trial.

The $93 million in restitution will be paid to the Social Security Administration and other agencies. He was also ordered to forfeit $187,600 in fees.

While Adkins was the final defendant to be sentenced in the case, the book on the largest Social Security fraud case in the nation may never close with its ringleader Conn missing after he absconded from supervision prior to his own sentencing.

As part of the complex scheme, former Huntington-based SSA Administrative Law Judge David Black Daugherty would seek out pending disability cases claimants represented by Eric Conn and assign the cases to himself.

From 2004 to 2011, Conn solicited Adkins to sign medical evaluation forms his office had previously prepared, without reviewing or even evaluating claimants. He received $350 for each approval. Conn subsequently sent the forms to Daugherty, who in turn approved the claimants’ requests for disability.

Their scheme obligated SSA to pay more than $550 million in lifetime benefits to claimants. Of at least 3,149 disability cases filed by Conn, more than 1,700 have been deemed fraudulent by government investigators.

Conn paid Daugherty more than $609,000 for granting benefits and nearly $200,000 to Adkins for signing the forms. For his part, Conn received more than $7 million in attorney’s fees.

Conn fled from the area prior to his sentencing and was last spotted in July at a gas station and a Walmart in New Mexico, according to the FBI, citing photos from surveillance cameras.

Despite his absence, Reeves sentenced him to 12 years in federal prison, the maximum allowed for stealing from the government through fraudulent disability claims and paying bribes to a Social Security judge.

Conn was ordered to pay more than $100 million in restitution to Social Security and Medicare, along with $5.7 million to the U.S. Department of Justice. He also received a $50,000 fine.

Daugherty, 81, was sentenced last month to a four-year federal prison sentence and to repay more than $93.8 million in restitution to the government agencies

A fourth man involved, Charlie Paul Andrus, 67, who was the chief administrative law judge in the Huntington Social Security Office, admitted to retaliation against an office whistleblower, was sentenced to serve six months in prison.

A $20,000 reward is being offered to information leading to Conn’s arrest. Those with information are asked to call the FBI’s Louisville, Kentucky, office at 502-263-6000.

  • (By COURTNEY HESSLER,
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Social Security Judge Paid $14,000.00 A Month Not To Hold Hearings. Just Decide The Cases

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

                                                   (Miss Kentucky, Kia Hampton)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Conn confirmed he destroyed records after learning of the investigation.

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

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

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

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

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

Daugherty and Adkins have pleaded innocent.

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

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

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

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

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

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

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

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

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

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

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

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

However, SSA went ahead with re-determination hearings.

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

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

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

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

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

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

People who lost benefits can appeal.

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

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

Estep, Bill; Lexington Herald Leader)

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

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

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

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

His application was denied.

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

Conn racked in more than $20 million in fees.

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

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

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

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

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

“There will be suicides,” he said.

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

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

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

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

“Why live?” Kevin Robertson wrote him.

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

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

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

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

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

___

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

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

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

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

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

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

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

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

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

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

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

___

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“I’m almost out of stuff to pawn.”

___

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

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

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

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

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

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

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

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

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

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

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

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

___

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

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

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

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

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

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

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

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

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

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

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

Judge Zahm had a lot more to say in an interview in October 2009. (Read the entire interview starting at page 430 in my book, socialNsecurity, available at Amazon.com or www.judgelondonsteverson.com)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Judge Daugherty was taken to a hospital and later released.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

..

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

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

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

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

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

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

 

 

Widespread fraud reported in Social Security Administration‘s Disability Program

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

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

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

(Judge David Daugherty)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Doug McKelway

By Doug McKelway

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

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

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

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

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

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

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

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

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

One in three of the cases reviewed revealed identical paperwork.

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

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

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

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

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

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

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

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

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

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

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

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

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

Nov. 02, 2013 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Enter Eric Conn

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

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

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

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

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

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

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

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

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

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

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

Daugherty’s hearings

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Read more here:

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Who Will President Obama Select To Be The New Commissioner Of The Social Security Administration?

Michael Astrue

Michael J. Astrue was sworn in as Commissioner of the Social Security Administration (SSA) on February 12, 2007 for a six-year term that expires on January 19, 2013. President Barack Obama is expected to soon nominate a new Commissioner of the Social Security Administration. Astrue was appointed by President George W. Bush. The White House is silent about who will take the helm at SSA.  The SSA faces voluminous backlogs and claimants may have to wait up to 5 years just to get a hearing before an Administrative Law Judge (ALJ). Some extreme cases have taken more than 10 years from the date of filing a claim to get a final decision on whether they are entitled to disability retirement benefits.

Social Security Commissioner Michael J. Astrue’s six-year term expires January 19, 2013. His successor must be confirmed by the Senate, in a process that Sen. Ben Cardin, a Maryland Democrat, expects will take a couple of months from the hearings to a vote.

Michael Astrue was still Commissioner of Social Security on 25 January. His term ran out on January 19 but the Social Security Act says he can stay in his job until a successor is confirmed. He hasn’t resigned so he’s still Commissioner. The same is true for Deputy Commissioner Carolyn Colvin. The rumor had been that Astrue did not intend to stay on after his term ended.  So far, he’s proving that rumor wrong. Astrue does seem to be clearing items off his desk. Take a look at what he just sent over to the Office of Management and Budget. I wonder if he’s planning to send over his version of new mental impairment listings before leaving.

The SSA has more than 11,000 employees at its headquarters in Woodlawn, Maryland. It provides benefits to retirees, disabled Americans and the children of deceased workers. The SSA paid more than $778,000,000,000 (that is billion) in benefits to 56 million people. The SSA’s budget rivals that of the Department Of Defense.

Carolyn Colvin is Astrue’s Deputy, but she is not considered to be a serious contender to replace him. She was confirmed by the Senate two years ago. Her term also expires January 19, 2013. She is a former secretary of the state Department of Human Resources and served as special assistant to Maryland’s Secretary of Transportation.

One possibility that comes to mind is that there will never be an announcement of an Obama nominee for Commissioner of Social Security. Astrue will leave the job in the near future and Carolyn Colvin will become the Acting Commissioner for the rest of Obama’s term as President. Colvin as Acting Commissioner, unlike Astrue and unlike a nominated and confirmed Commissioner of Social Security, would be serving at the President’s will. If Colvin displeased the President, she could be removed from the job by Obama nominating and the Senate confirming a Commissioner. I think it is more than possible that the President has had his fill of an independent Social Security Commissioner and wants someone who is truly on his team. I have no inside information. This is just my speculation. Of course, this can’t happen if Astrue keeps hanging around.

(BIOGRAPHY of Catolyn Colvin)

QUOTE: On February 14, 2013, Carolyn W. Colvin became the Acting Commissioner of Social Security.  Prior to this designation, she served as the Deputy Commissioner, having been confirmed by the United States Senate on December 22, 2010 as President Obama’s nominee.  In addition to her role as the Acting Commissioner of Social Security, Ms. Colvin serves as a Trustee to the Social Security Board of Trustees.

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. UNQUOTE.

Nancy Altman, who helps lead two Social Security advocacy groups, has emerged as a potential contender. She has been endorsed by the AFL-CIO and the Association of Administrative Law Judges (AALJ), a network of 1,400 ALJs who decide disability insurance claims. The endorsement of the AALJ is the kiss of death; so, she cannot really be considered a serious contender for the job.

Nevertheless, Judge Randall Frye, president of the AALJ, has  said the AALJ is backing Ms. Altman for Commissioner because of her expertise.

For her part, Ms. Altman has said “My goal would be to restore confidence in the agency and to let the workforce know how appreciative I am and the American people are for the work that is being done.”

One of the major challenges the next commissioner will confront is building administrative support to decrease the long backlogs in the disability insurance program. This is something that Commissioner Astrue was not able to accomplish despite all of the ALJs he was allowed to place on the federal pay roll and the increase in budget that he was granted. The new Commissioner will also be challenged to improve the quality of service that SSA employees are reputed to provide to the public.  Case workers and administrative staff members at SSA are notorious for their abrupt manners and surly attitudes resulting in a low level of public service. The Agency will be challenged to provide a higher level of service.

Senator Ben Cardin, a Maryland Democrat, was noted to remark that “This is an opportunity at the Social Security Administration to really take it to the next level, and it’s important to make sure it has the resources it needs”.

James Robinson Jr.

My choice for the next Commissioner is something of a dark horse. He is James Roosevelt Jr. He is a Health Care Insurance man and considering the controversy surrounding the implementation of ObamaCare, he would be a natural choice for President Obama for his 2nd term.

President Obama’s reelection lifted much of the cloud that hung over the health care industry in Massachusetts, where caregivers and insurers anticipated a push to repeal the national health care overhaul if Mitt Romney had become president. But Romney was not elected.

“This outcome provides an opportunity for greater cooperation and less contention,” said James Roosevelt Jr., chief executive of Tufts Health Plan.

But health care organizations are still seeking clarity on many features of ObamaCare, also known as the Affordable Care Act, many of which have not yet taken effect. The federal overhaul includes regulations requiring insurers to invest in new technology and funds for expanding Medicaid and revamping Medicare payments as the states press forward with their own efforts to rein in costs and build more integrated health care networks.

Obama’s victory “removes a layer of uncertainty for health plans, providers, and employers,” said Andrew Dreyfus, chief executive of Blue Cross Blue Shield of Massachusetts, the state’s largest health insurer.

In 2012 James Robinson Jr wrote an op-ed with Robert L. Reynolds, a Republican and CEO of Putnam Investments,  where he advocates raising the Social Security retirement age at a brisker pace and cutting back the growth of benefits with a different Consumer Price Index (CPI).

Robinson wrote “.. we should accelerate the rise in Social Security’s full-benefit retirement age from age 67 to 68 by 2030 and then index the full benefit age for future generations to gains in longevity. Life expectancy past age 65 has risen nearly 50 percent since 1940, when Social Security first began regular monthly payments. That said, we should improve disability options for those engaged in physically demanding jobs. No one expects coal miners or telephone line crews to work into their late 60s.”

He went further to say “On the benefits side, we should change the way we calculate the cost-of-living adjustment for all beneficiaries, by utilizing a revised Consumer Price Index which most economists agree more accurately reflects the rate of inflation for the expenses most seniors incur. Such a change would curb the rate of increase in benefits for future generations of retirees […]”

Considering President Obama’s attitude and behavior with respect to the “Fiscal Cliff” negotiations I am betting he will select James Robinson Jr to be the next Commissioner of the Social Security Administration.

This just in from former Democratic Senator Bill Bradley of New Jersey.

The press and public have understandably focused in recent weeks on high-profile appointments such as the secretaries of state, defense and treasury as President Barack Obama builds his second-term team. They also should pay close attention to the search for a man or woman to serve as commissioner of the Social Security Administration — a post central to the national welfare and, with a six-year term, an appointment that will continue into the next presidency.

The Social Security Administration, headquartered just outside Baltimore in Woodlawn, touches the lives and pocketbooks of nearly every American. With this cornerstone of our social compact under demographic pressure and political threat, the president’s choice for a successor is vitally important.

Washington is a land of partisan extremes these days, a place where compromise is an orphan and dealmakers are a rare sight. Inevitably, Social Security will again be a political football as Congress attempts to manage America’s fiscal challenges. As a veteran of more than a few policy debates and political fights — some of which didn’t end the way I’d have liked — I want suggest what I think are key job requirements for the new commissioner:

•The nominee should bring substantial managerial experience. The Social Security Administration has roughly 62,000 employees. The agency processes payments of $4.5 billion to 6 million recipients every month. It needs a strong CEO capable of running a large and complex organization that does high-stakes work.

•The nominee should bring considerable policy expertise. For more than 20 years, actuaries have battled, often very publicly, over the viability of Social Security’s funding mechanism. It would be profoundly foolish today to ignore the demographic challenges the retirement of baby boomers will pose to the system. The remedy should not be a Band-Aid, but structural reform for the long haul.

The next commissioner, unlike some predecessors, should bring to the job a detailed historical knowledge of Social Security — of decisions that have made the system stronger and of others that have weakened it.

•Diplomatic skills will be essential. The commissioner of Social Security will need to deal not only with criticism from his or her natural political opponents but also with substantial pressure from natural allies. A commissioner perceived as a zealot or out of touch with the private sector will have a hard time advancing arguments for a new structure of benefits or changes to Social Security’s long term funding.

•The commissioner of Social Security needs considerable fortitude. One of the most important aspects of the job is appearing before Congress (approximately four times a year, though the frequency can shift). For at least the next two years, that will mean confronting a Republican-controlled Congress whose leadership lives in fear of tea partiers whose rhetoric would suggest they’d like to see Social Security dismantled altogether. The next commissioner of Social Security will need the strength of will and command of facts necessary to stand toe-to-toe with well-prepared congressional foes.

•Finally, the next commissioner will have to be someone passionately dedicated to the principles that underlie the Social Security system and eloquent in articulating those principles.

The vast majority of Americans want a fair system that offers dignity to the elderly while preserving economic opportunity for current and future workers. They deserve a commissioner who can ensure Social Security operates properly, provide a vision for its long-term future and lead the fight to preserve it from political critics or demographic threats.

(Bill Bradley)

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How To Win Your Disability Case And Make The Government Pay For Your Attorney

THOMAS v. ASTRUE

LAURA M. THOMAS, Plaintiff-Appellant, v. MICHAEL J. ASTRUE, Commissioner of Social Security Administration, Defendant-Appellee.

United States Court of Appeals, Tenth Circuit.

Before TYMKOVICH and BALDOCK, Circuit Judges, and BRORBY, Senior Circuit Judge.

ORDER AND JUDGMENT
TIMOTHY M. TYMKOVICH, Circuit Judge.
This appeal requires us to consider a magistrate judge’s discretion to deny attorney’s fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412. After a magistrate judge remanded Laura M. Thomas’s disability claim to the Commissioner of Social Security for further analysis, Ms. Thomas applied for attorney’s fees under the EAJA. The magistrate judge denied her application for fees, Ms. Thomas appealed, and we now affirm.
Ms. Thomas originally applied for disability insurance benefits, claiming she was disabled on October 28, 2004, by deep vein thrombosis and obesity. Her case proceeded to a hearing before an administrative law judge (ALJ), at which a medical expert testified that Ms. Thomas became disabled in May 2007. Without discussing this testimony, the ALJ concluded that Ms. Thomas did indeed become disabled on May 1, 2007, but her insured status had already expired on December 31, 2006. Consequently, the ALJ denied benefits, prompting Ms. Thomas to seek judicial review in the district court.
Ms. Thomas argued for a remand on the ground (among others) that the ALJ improperly evaluated the medical expert’s opinion. She acknowledged that the expert’s opinion concerning her date of onset was predicated on evidence of neurological damage in her lower extremities discovered in 2007. But she argued that there was other evidence documenting neurological changes as early as February 2005, yet the ALJ did not explain why he credited the expert’s opinion over this other evidence. The magistrate judge agreed that the ALJ failed to properly evaluate the medical expert’s opinion, see 20 C.F.R. § 404.1527(f)(2)(ii) (requiring ALJ to evaluate opinion evidence under relevant factors and explain weight accorded to opinion), and he therefore remanded the case to the agency to allow the ALJ to explain the weight accorded to the expert’s opinion.
Having succeeded in obtaining a remand, Ms. Thomas returned to the magistrate judge and requested $5,995.10 in attorney’s fees pursuant to § 2412(d). In her application, she argued that the remand order was a favorable final judgment and the Commissioner’s position was not substantially justified. The Commissioner, for his part, opposed a fee award, asserting that the issues before the magistrate judge “involve[d] a genuine dispute, reasonable people could differ as to the appropriateness of the matter, and the ALJ’s decision was justified `for the most part.'”  The Commissioner explained that the ALJ’s decision was affirmed on all grounds except the medical expert’s opinion, which only required further discussion of the weight assigned; otherwise, the ALJ’s finding of May 1, 2007, as the date of onset was consistent with the expert’s opinion. Hence, the Commissioner maintained that his position was substantially justified and fees should therefore be denied. The magistrate judge agreed with the Commissioner and held that “[t]he government’s position . . . was not only substantially justified, any reasonable person would have viewed it as substantively correct, but technically defective.”
We review the denial of an EAJA claim for abuse of discretion. The EAJA entitles a prevailing party to recover reasonable attorney fees from the government “`unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.'”  “The test for substantial justification in this circuit is one of reasonableness in law and fact.”  In other words, “the government’s position must be justified to a degree that could satisfy a reasonable person,” but it need not necessarily be correct. 
We agree that the government’s position was substantially justified. The dispositive issue for the magistrate judge was whether the ALJ properly evaluated the medical expert’s opinion. The ALJ cited substantial evidence demonstrating that Ms. Thomas’s condition had deteriorated until she was disabled in May 2007, but he did not discuss how (if at all) he weighed the medical expert’s opinion. Although the Commissioner defended the ALJ’s decision, he did so on substantially justifiable grounds, noting that the ALJ was not obligated to find that Ms. Thomas was disabled after her insured status expired. He also emphasized that the ALJ’s finding of disability in May 2007 was consistent with the expert’s opinion, which was itself substantial evidence supporting the ALJ’s decision.
These arguments were rejected by the magistrate judge, but that does not render the government’s position unreasonable. Rather, as the magistrate judge observed, “the record clearly supported the ALJ’s decision so long as the ALJ simply stated the weight he assigned to the medical expert’s opinion.”  Indeed, the magistrate judge “fully anticipated that on remand the ALJ would promptly revise his decision to identify the weight he gave the medical expert without altering his ultimate conclusion that [Ms. Thomas] was not disabled prior to the onset date found by the ALJ.”  These circumstances demonstrate that the magistrate judge acted within his discretion in denying attorney’s fees.
Accordingly, the judgment of the district court is AFFIRMED.
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If Your Treating Doctor Says Your Are Disabled, The Judge Must Grant You Benefits.

TALLEY v. ASTRUE

April 11, 2012.


Modern Social Security card.

Modern Social Security card. (Photo credit: Wikipedia)

MEMORANDUM OPINION AND ORDER

BETH DEERE, Magistrate Judge.
Plaintiff Brenda L. Talley appeals the final decision of the Commissioner of the Social Security Administration (the “Commissioner”) denying her claim for Disability Insurance benefits (“DIB”) under Title II of the Social Security Act (the “Act”) and Supplemental Security Income (“SSI”) under Title XVI of the Act. For the following reasons, the decision of the Commissioner must be REVERSED and REMANDED.
I. Background:
Ms. Talley filed for DIB and SSI on May 15, 2008, claiming disability since June 23, 2007. Ms. Talley alleged that she was disabled as a result of diabetes, arthritis, anxiety, morbid obesity, malabsorption syndrome, agoraphobia, hypertension, supraventricular tachycardia, obsessive compulsive disorder, neuropathy, retinopathy, endometriosis, degenerative joint disease, chronic insomnia, and deep vein thrombosis. After denials initially and upon reconsideration, Ms. Talley requested a hearing before an Administrative Law Judge (“ALJ”).  The ALJ held a hearing on July 6, 2009, at which Ms. Talley appeared with her attorney and testified.  The ALJ also heard testimony from a vocational expert.
The ALJ issued a decision on November 4, 2009, finding that Ms. Talley was not disabled for purposes of the Act. On January 20, 2011, the Appeals Council denied her request for review, making the ALJ’s decision the Commissioner’s final decision.

At the time of the hearing before the ALJ, Ms. Talley was 47 years old and was living alone in a house next door to her mother and brother. (Tr. 19, 40-41) She had previous work as a registered nurse.

II. Decision of the Administrative Law Judge:
The ALJ followed the required five-step sequence to determine: (1) whether the claimant was engaged in substantial gainful activity; (2) if not, whether the claimant had a severe impairment; (3) if so, whether the impairment (or combination of impairments) met or equaled a listed impairment; (4) if not, whether the impairment (or combination of impairments) prevented the claimant from performing past relevant work; and (5) if so, whether the impairment (or combination of impairments) prevented the claimant from performing any other jobs available in significant numbers in the national economy. 20 C.F.R. §§ 404.1520(a)-(g); 416.920(a)-(g).
The ALJ found that Ms. Talley had not engaged in substantial gainful activity since her alleged disability onset date but noted that she had received unemployment benefits into the first quarter of 2008, indicating she was available and willing to return to work during that period.  The ALJ also found that Ms. Talley had the following severe impairments: diabetes mellitus, back disorder (degenerative arthritis), obesity, and mood disorder.  According to the ALJ, Ms. Talley did not have an impairment or combination of impairments, however, that met or equaled an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1526, 416.926).
The ALJ determined that Ms. Talley retained the residual functional capacity (“RFC”) to perform sedentary work except as follows: she could occasionally lift/carry ten pounds and frequently lift/carry less, stand/walk for two hours; occasionally climb, balance, crawl, kneel, stoop, and crouch. She had moderate restriction in her ability to maintain the activities of daily living, social functioning, and concentration, persistence, and pace. She was moderately limited in her ability to understand, remember, and carry out detailed instructions; make judgments on simple work related decisions; interact appropriately with the public; and respond appropriately to usual work situation and routine work changes. She could perform work where interpersonal contact was incidental to the work performed, complexity of tasks is learned and performed by rote, with few variables, little judgment was required, and supervision was simple, direct, and concrete.
The ALJ concluded that Ms. Talley could not perform her past relevant work as a registered nurse. (Tr. 58) Relying on the vocational expert’s responses to interrogatories, the ALJ concluded Ms. Talley could perform work as a production worker, credit authorizer, or interviewer and that she was not disabled within the meaning of the Act.
III. Analysis:
A. Standard of Review.

In reviewing the Commissioner’s decision, this Court must determine whether there is substantial evidence in the record as a whole to support the decision.  Substantial evidence is something less than a preponderance, but it must be, “sufficient for reasonable minds to find it adequate to support the decision.”

In reviewing the record as a whole, the Court must consider both evidence that detracts from the Commissioner’s decision and evidence that supports the decision; but, the decision cannot be reversed, “simply because some evidence may support the opposite conclusion.” 
B. Severe Impairments and Residual Functional Capacity
Ms. Talley complains that the ALJ erred by failing to find that her diabetic retinopathy, supraventricular tachycardia (SVT), peripheral neuropathy, and hip pain were severe impairments.  She also complains that the ALJ’s residual functional capacity assessment is not supported by substantial evidence in the record.
Ms. Talley had the burden of showing that her impairments were severe; however, this burden is not a great one.  Rather, step two of the sequential evaluation process provides a de minimus screening device to dispose of groundless claims. 
An impairment is severe if the effect of the impairment on the claimant’s ability to perform basic work is more than slight or minimal.  Basic work activities are the abilities and aptitudes necessary to do most jobs, such as hearing, standing, walking, sitting, lifting, handling, remembering simple instructions, using judgment, and dealing with changes in a routine work setting. 20 C.F.R. §404.1521. The Commissioner must resolve any doubt as to whether the required showing of severity has been made in favor of the claimant. SSR 85-28 at *4 (1985).
Once it is determined that an individual has a severe impairment for purposes of step two, the combined effect of all impairments are considered in determining an individual’s residual functional capacity, regardless of whether the impairments are labeled severe or non-severe. 20 C.F.R. §§ 404.1545(e) and 416.945(e).
In assessing residual functional capacity, the ALJ must give appropriate consideration to all of the claimant’s impairments, and base the assessment on competent medical evidence. Partee v. Astrue, 638 F.3d 860, 865 (8th Cir. 2011) (citations omitted). An ALJ should consider the quality of the claimant’s daily activities and the ability to sustain activities, interests, and relate to others over a period of time. The frequency, appropriateness, and independence of the activities must also be considered. Boettcher, 652 F.3d at 866 (internal quotation marks and citation omitted).
1. Diabetic Retinopathy
Ms. Talley claims that the ALJ erred by failing to find that her diabetic retinopathy was a severe impairment. The ALJ noted that Ms. Talley had been referred for an evaluation of diabetic retinopathy and stated that her diabetes could be expected to cause vision changes.  But he did not find her diabetic retinopathy to be a severe impairment; nor did he discuss Ms. Talley’s vision when assessing her residual functional capacity.
The Commissioner does not dispute that Ms. Talley was diagnosed with diabetic retinopathy, but argues that the diagnosis, by itself, does not indicate a severe impairment. This statement of the law is true, as far as it goes. However, the ALJ still had a duty to consider Ms. Talley’s diabetic retinopathy when considering her residual functional capacity, and it appears that he failed to do so.
In November, 2009, Ms. Talley was referred for an eye examination after complaints that her eyes were hurting. The records from Ms. Talley’s visit to an opthamologist in November, 2008, indicate that she had a history of retinal bleeding and glaucoma. In a narrative report dated November 13, 2009, Gary Russell, M.D., a physician at River Valley Medical Center, wrote that, according to her ophthalmologist, Ms. Talley had diabetic retinopathy with marked decrease in her vision and at least one retinal hemorrhage that was treated with laser therapy.  On November 19, 2009, Ms. Talley was seen at River Valley Christian Clinic (“River Valley”) complaining of vision problems. She was referred to an eye doctor.
At the hearing, Ms. Talley testified that she had glasses, but that they were for distance vision and not for reading.  She stated that she was no longer able to read the newspaper because her vision was impaired.  However, she was able to read a large-print Bible. She also testified that one reason she used a cane was to help her deal with her visual impairment because she had difficulty detecting depth and color change.

In spite of considerable evidence in the record indicating that Ms. Talley’s diabetic retinopathy has more than a minimal effect on her ability to work, it does not appear that the ALJ considered it when assessing her residual functional capacity. The ALJ found that Ms. Talley was capable of working as a production worker which, according to the Dictionary of Occupational Titles, would require her to frequently use near acuity and depth perception, and to occasionally use color vision. Employment and Training Admin., U.S. Dep’t of Labor, Dictionary of Occupational Titles (4th ed. rev. 1991).

 

Further, it does not appear that any consulting or examining source offered an opinion about the extent of visual limitation caused by Ms. Talley’s retinopathy. Remand is necessary for the ALJ to more fully and fairly develop the record regarding the extent of Ms. Talley’s visual impairment, if any.
2. Peripheral Neuropathy
On November 7, 2007, Kenneth Turner, M.D., diagnosed Ms. Talley with diabetic peripheral neuropathy. On September 18, 2008, Ms. Talley complained of numbness and tingling during her visit to River Valley.
At the hearing, Ms. Talley testified that her feet and legs were cold and numb bilaterally. She stated that she had problems with strength and grip, could not open jars, and dropped things.  She had difficulty holding a glass of milk because of problems with her grip.  She also stated that her peripheral neuropathy caused her knees to buckle, leading her to use a cane. (Tr. 30) She had difficulty getting up and down the three steps leading to her house.
In his opinion, the ALJ acknowledged Ms. Talley’s diabetic neuropathy and considered whether there was documentation of neuropathy in two extremities significant enough to meet a Listing.  He also noted that her diabetes could cause “tingling and numbness” in the hands or feet.
When assessing Ms. Talley’s residual functional capacity, however, the ALJ focused his assessment only on the neuropathy in her feet. He noted that she had reported numbness, tingling, and pain in her feet.  The ALJ stressed, however, that the orthopedic specialist had found that she had normal gait, that her neurovascular status was intact, and that she had positive straight leg tests.  The ALJ concluded that Ms. Talley could sit for six hours; stand/walk for two hours; and could occasionally climb, balance, crawl, kneel, stoop, or crouch.
The ALJ did not address the evidence in the record indicating that Ms. Talley’s peripheral neuropathy also affected her hands. He did not limit her residual functional capacity in any way related to her hands and concluded she could perform work as a credit authorizer and interviewer — jobs that require frequent handling. 

The ALJ’s failure to fully account for Ms. Talley’s peripheral neuropathy in assessing residual functional capacity is error. Again, it does not appear that any examining medical professional had ordered a nerve conduction study of Ms. Talley or had offered an opinion as to the extent of the limitation caused by her peripheral neuropathy. On remand, the Commissioner should consider the effect, if any, that Ms. Talley’s peripheral neuropathy in her legs, hands, and feet has on her residual functional capacity.
3. Hip Pain
Ms. Talley alleges that it was error for the ALJ not to conclude that her hip pain was a severe impairment. The ALJ acknowledged Ms. Talley’s complaints of hip pain at various points in his opinion. He noted that Ms. Talley complained of hip pain to Dr. Turner, who recorded in treatment notes that Ms. Talley had a right hip that “pops out at times.”
The ALJ also acknowledged that Ms. Talley was examined by Owen Kelly, M.D., at Arkansas Orthopaedic Institute in November, 2007.  Dr. Kelly took x-rays of Ms. Talley that revealed some degenerative disc disease.  On examination, he noted that she had normal gait, but tenderness of the greater trochanter bursa and around the lumbosacral area. He diagnosed low back pain, degenerative disc disease, and right leg radiculopathy. He ordered an MRI of Ms. Talley’s lumbar spine, but she reported to Dr. Turner that she was unable to have the test because of her financial situation.
On October 2, 2008, Ms. Talley complained of hip pain during a visit to Stanley Teeter, M.D., at River Valley.  She was diagnosed with degenerative arthritis in her hip. Dr. Teeter prescribed Etodolac but, as the ALJ noted, that medication was discontinued due to gastritis.
At her hearing, Ms. Talley testified that Dr. Teeter had told her she had “bone against bone” on her right hip, and that her hip socket was degenerated.  She stated that he had advised her to keep as much weight as possible off of it, so she used a cane.  Additionally, Ms. Talley testified that she was not able to bend down to pick up objects that dropped on the floor.  She relied on her brother or mother to come to her house and do that for her.
The ALJ discounted the effects of Ms. Talley’s hip pain, noting that no surgical treatment was recommended. However, Dr. Kelly, the orthopedic specialist, had ordered an MRI in order to have a complete work-up on Ms. Talley, but she was not able to have the test because of her limited financial resources. She never returned to Dr. Kelly, but instead continued to seek treatment for hip pain from her general practitioners at the free clinic. 

Further, the ALJ noted that none of Ms. Talley’s doctors had restricted her activities. However, Ms. Talley’s testimony contradicts this assertion. She testified that Dr. Teeter had advised her to keep as much weight off of her hip as possible. The ALJ’s opinion does not offer any explanation for discrediting this testimony.
Further, Dr. Russell, one of Ms. Talley’s treating physicians, stated that Ms. Talley was unable to sit or stay in one position for an extended period of time. While the ALJ did not have Dr. Russell’s assessment at the time he wrote his opinion, the Court may consider that opinion, which was available to, and considered by, the Appeals Council. The court’s role is to determine whether the ALJ’s decision is supported by substantial evidence including the evidence submitted after the determination was made.
The ALJ’s conclusion that Ms. Talley could perform sedentary work and could occasionally climb, balance, crawl, kneel, stoop, and couch is not supported by substantial evidence in the record.
4. Mental Impairments
Ms. Talley also claims that the ALJ erred in assessing her mental impairments. The ALJ concluded Ms. Talley had moderate restriction in activities of daily living; in her social functioning; and in concentration, persistence, and pace.  He noted that she was hospitalized in 2001 following a suicide attempt.  The ALJ found that Ms. Talley’s mood disorder was a severe impairment, but he concluded that she maintained the residual functional capacity for unskilled work.
Ms. Talley points out that the ALJ declined to discuss the mental consultative examination performed by Don Ott, Psy.D., on September 17, 2008.  Dr. Ott observed that, during the examination, Ms. Talley’s affect was rigid and flat. He stated that she made very little eye contact, and that her voice was tired and resigned. She seemed distracted and talked excessively during the evaluation.  Dr. Ott concluded that Ms. Talley’s social interaction was “fairly limited.”  Her concentration was impaired, and her capacity to cope with the mental demands of work was deficient. Dr. Ott diagnosed Ms. Talley with major depressive disorder, recurrent, moderate and assigned a GAF score of 50-60.
The Commissioner points out that the ALJ addressed Dr. Ott’s opinion by stating, “the opinions of the claimant’s examining and treating physicians are given substantial weight consistent with 20 C.F.R. 404.1527.” Further, he argues that Dr. Ott’s opinion is not contradictory to the ALJ’s assessment of Ms. Talley’s residual functional capacity, pointing out that Dr. Ott “never opined as to Plaintiff’s actual limitations in concentration or any work-related domain.” 

The ALJ’s handling of Dr. Ott’s opinion was inadequate. As explained in Social Security Ruling 96-6p, administrative law judges and the Appeals Council are not bound by findings made by State agency or other program physicians and psychologists, but they cannot ignore these opinions and must explain the weight given to the opinions in their decisions. SSR 96-6p (1996). Dr. Ott’s opinion that Ms. Talley’s concentration was impaired and that her ability to cope with the mental demands of work was deficient should have at least been addressed by the ALJ in his opinion.
The ALJ’s assessment of Ms. Talley’s treatment records was also deficient. In his opinion, the ALJ based his residual functional capacity assessment on the July, 2008 assessment of Richard H. Sundermann, Jr., M.D. (Tr. 443-44) Dr. Sundermann recounted Ms. Talley’s history of depression and anxiety. He noted that she had been unable to afford Effexor and had switched to a generic, but had been unable to afford even an adequate dose of the generic drug. He diagnosed Ms. Talley with moderate, recurrent major depressive disorder and prescribed Effexor, which he could supply to her through a patient assistance program.
The ALJ states the Effexor resulted in fewer suicidal thoughts and an improved mood. He summarized the remaining treatment notes by stating that Ms. Talley continued to attend therapy sessions and medication management, “with a few more changes in the medications and improvement of her mood.” Based on this analysis of Ms. Talley’s treatment records, the ALJ concluded that she could perform unskilled work.
The ALJ’s assessment that Ms. Talley’s depression and anxiety were controlled with medication and therapy is not supported by substantial evidence in the record. In April, 2008, Ms. Talley complained of increased anxiety and depression to Dr. Turner. He referred her to Counseling Associates noting that, “[s]he is not actually suicidal but needs more intensive care for depression than I can provide alone.”  In May of 2008, Ms. Talley called Dr. Turner’s office seeking samples of Effexor because she could not purchase her medication.  He was unable to provide samples of Effexor and changed her medication to Cymbalta.
On June 4, 2008, Ms. Talley presented to Counseling Associates complaining of anxiety and depression since she was a child. She reported daily symptoms of depression and anxiety, stating that her social anxiety was so severe that she remained isolated and felt like a failure. She was initially diagnosed with major depressive disorder, recurrent, moderate, without psychotic features, and anxiety disorder with agoraphobia. She was assigned a GAF score of 50. (Tr. 331-336)
On July 9, 2008, Dr. Sundermann evaluated Ms. Talley. He noted that she had a difficult time digesting her food and medicine because she had undergone gastric bypass surgery in 2001. He stated that Prozac, which Ms. Talley had previously taken with good result, had stopped working. She reported a failed suicide attempt years earlier, which had resulted in her being psychiatrically hospitalized for seven days.  Dr. Sundermann prescribed Effexor XR and therapy.
On August 26, 2008, Ms. Talley began therapy with Erin Willcutt, LAC. On September 8, 2008, Ms. Talley was evaluated by Sam Hernandez, APN. Progress notes from the visit indicate that Ms. Talley reported that her depression seemed worse and that she wanted to stay in bed most of the time.  She was observed to have a flat affect and admitted to having fleeting suicidal thoughts with a plan at times. Nurse Hernandez increased her Effexor, and Ms. Talley agreed to allow her brother to help her manage her medications. 

During a therapy session on September 12, 2008, Ms. Talley seemed to be doing better.  But on October 1, 2008, her therapist noted that her response to treatment has been “marginal,” and her anxiety level was very high.  On October 6, 2008, Ms. Talley returned to Nurse Hernandez, who noted that she seemed to be doing quite a bit better.
Ms. Talley returned to see Ms. Willcutt on October 14, 2008. Ms. Willcutt noted that Ms. Talley seemed to be doing a little better, but still has difficulty getting motivated to do things to improve her situation.  During visits on November 12, 2008, and December 9, 2008, Ms. Talley reported doing better.  On December 11, 2008, Nurse Hernandez diagnosed major depressive disorder, recurrent, moderate and continued her on Effexor and individual therapy.
On January 15, 2009, Ms. Talley reported feeling a little more depressed, but she returned on February 4, 3009, to report feeling better.
Ms. Willcutt noted that at her session on March 6, 2009, Ms. Talley had a depressed mood. She noted that Ms. Talley was not doing as well as she had been at her last visit and reported feeling very depressed after her mother had yelled at her.
Ms. Talley was examined by Roy Ragsdill, M.D., on April 7, 2009. Ms. Talley complained to Dr. Ragsdill of problems with her mother and social anxiety. He suggested adding dependent personality traits to her diagnosis and noted that Ms. Talley had only a “partial response to Effexor” but that he was “reluctant” to change her medications.  He continued her medications and suggested an increase in therapy to weekly.
Ms. Willcutt reported that on April 21, 2009, Ms. Talley’s response to therapy was “minimal” and her thought patterns were “very negative.” Ms. Willcutt suggested that they increase their sessions.
On May 5, 2009, Ms. Talley was noted to have a very depressed mood, negative thought process, and very tearful behavior. Ms. Talley admitted to thoughts of wanting to die and not wanting to go on, but denied any plan or intent to harm herself. Ms. Willcutt discussed possible acute care with Ms. Talley, but she rejected the idea because she had formerly worked at the acute unit and felt this would make her feel like more of a failure. 

Ms. Willcutt noted that cognitive therapy was minimally successful and noted her intention to meet with her case manager and discuss the case with Ms. Talley’s psychiatrist.  Ms. Willcutt recommended an increased level of care for Ms. Talley with weekly therapy and meetings twice per month with her case manager.
Notes from Ms. Talley’s May 20, 2009 therapy session indicate that she exhibited depressed mood, negative thought process, and no change in behavior of functioning. On June 16, 2009, Dr. Ragsdill examined Ms. Talley. He noted that her mood was somewhat better, but discussed with her the possibility of adding lithium as an augmentation to her treatment. Ms. Talley rejected the idea.
Notes from Ms. Talley’s therapy session with Ms. Willcutt on November 18, 2009, indicate that Ms. Talley’s response to therapy was not positive.  She stated, “Brenda is very depressed and apathetic about her current living situation. She was very negative in session and reports having no energy to do or work on current situation. She reports feeling like `Brenda’ is slipping away.”  Ms. Willcutt noted that “Brenda is isolating and avoiding friends, family, and appointments when possible.” She recommended that Ms. Talley increase the frequency of her therapy sessions and case management appointments.
Ms. Willcutt met with Ms. Talley again on December 9, 2009.  She noted that Ms. Talley’s mood was depressed and overwhelmed; her thoughts were negative; and her behavior was anxious. Ms. Talley reported difficulties living with her mentally ill mother and brother. Ms. Willcutt noted that Ms. Talley’s activity level was “significantly reduced.”
On December 9, 2009, Ms. Talley was also seen by her psychiatrist, Dr. Ragsdill. He noted that Ms. Talley was walking with a cane, was anxious, and did not want to go out much. He assessed that she was having an “incomplete response” to her antidepressant regimen. He increased her Effexor to the maximum dose and added lithium.
In a treatment and prognosis summary dated December 13, 2009, Ms. Willcutt noted that Ms. Talley’s depression and anxiety had increased over the past several months. She pointed out that Ms. Talley’s thought patterns were increasingly negative and her anxiety was more apparent. She stated that she had agreed with her current diagnosis of major depressive disorder, recurrent, moderate to severe and anxiety disorder NOS and stated that, in her opinion, Ms. Talley’s prognosis was guarded, due to the recurrent nature of her mental disorder and severe stressors.
Evidence from treating sources are generally accorded great weight because they are most able to provide a longitudinal picture of a claimant’s impairments. 20 C.F.R. § 416.927. The ALJ had access to Ms. Talley’s treatment records from Counseling Associates through June, 2009, but opted to focus on the first few months of her treatment, when she showed some signs of improvement. The Appeals Council had access to Ms. Talley’s records through December, 2009, but concluded that the information did not provide a basis for changing the ALJ’s decision. The Court disagrees. 

The treating source records, taken as a whole, indicate that Ms. Talley’s depression and anxiety had not improved on medication but, in fact, steadily declined after March of 2009. The ALJ erred by failing to address Dr. Ott’s opinion and by relying on a six-month snapshot of Ms. Talley’s treatment records when assessing her mental residual functional capacity.
IV. Conclusion
After consideration of the record as a whole, the Court concludes that the decision of the Commissioner is not supported by substantial evidence. The Commissioner’s decision is reversed and remanded for action consistent with this opinion. 
IT IS SO ORDERED.
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If Am Employer Will Allow Reasonable Accommodations To Allow A Person To Work, He Is Not Disabled

HIBSHMAN v. ASTRUE

 


 

 

MEMORANDUM OPINION AND ORDER
D BETH DEERE, Magistrate Judge.
Plaintiff Steven L. Hibshman appeals the final decision of the Commissioner of the Social Security Administration (the “Commissioner”) denying his claim for Supplemental Security income (“SSI”) under Title XVI of the Social Security Act (the “Act”). For reasons set out below, the decision of the Commissioner is AFFIRMED.
I. Background:
On April 17, 2008, Mr. Hibshman protectively filed for SSI alleging disability beginning the same date due to depression, anxiety, agoraphobia, asthma, high blood pressure, reflux, back and neck pain, and migraine headaches. Mr. Hibshman’s claims were denied initially and upon reconsideration. At his request, an Administrative Law Judge (“ALJ”) held a hearing on January 27, 2010, at which Mr. Hibshman appeared with his lawyer. At the hearing, the ALJ heard testimony from Mr. Hibshman and a vocational expert (“VE”).
The ALJ issued a decision on August 16, 2010, finding that Mr. Hibshman was not disabled for purposes of the Act. On November 5, 2010, the Appeals Council denied his request for review, making the ALJ’s decision the Commissioner’s final decision.
Mr. Hibshman was thirty-seven years old at the time of the hearing. He had an eighth-grade education and had worked as a carpenter and lumber yard laborer.  At the time of the hearing, he lived with his wife and children.

II. Decision of the Administrative Law Judge:
The ALJ followed the required five-step sequence to determine: (1) whether the claimant was engaged in substantial gainful activity; (2) if not, whether the claimant had a severe impairment; (3) if so, whether the impairment (or combination of impairments) met or equaled a listed impairment; (4) if not, whether the impairment (or combination of impairments) prevented the claimant from performing past relevant work; and (5) if so, whether the impairment (or combination of impairments) prevented the claimant from performing any other jobs available in significant numbers in the national economy. 20 C.F.R. § 416.920(a)-(g).
The ALJ found that Mr. Hibshman had not engaged in substantial gainful activity since his alleged onset date. And he found that Mr. Hibshman had the following severe impairments: anterior compression T-11, degenerative joint disease of the hands and right knee, hypertension, asthma, depression, and anxiety. The ALJ found Mr. Hibshman did not have an impairment or combination of impairments, however, that met or equaled an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. § 416.926).
The ALJ determined Mr. Hibshman had the residual functional capacity to perform light work, except that he would have to have a sit/stand option, and was limited to jobs that involved simple tasks, simple job instructions, and only incidental contact with the public. He found Mr. Hibshman could not perform his past relevant work.  Relying on the testimony of the VE, he found, however, that Mr. Hibshman had the residual functional capacity to perform jobs that existed in significant numbers in the national economy.
III. Analysis:
A. Standard of Review
In reviewing the Commissioner’s decision, this Court must determine whether there is substantial evidence in the record as a whole to support the decision.  Substantial evidence is “less than a preponderance, but sufficient for reasonable minds to find it adequate to support the decision.”

In reviewing the record as a whole, the Court must consider both evidence that detracts from the Commissioner’s decision and evidence that supports the decision; but, the decision cannot be reversed, “simply because some evidence may support the opposite conclusion.” 
Mr. Hibshman’s main complaint is that the ALJ did not properly consider his low Global Assessment of Functioning (“GAF”) scores that ranged from 45 to 55. The Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (“DSM-IV”), published by the American Psychiatric Association, states that a GAF score of 41 to 50 generally indicates serious impairment in social, occupational, or school functioning. (DSM-IV 32) The DSM-IV is, however, a classification of mental disorders that was developed for use in clinical, educational, and research settings. Specific diagnostic criteria included in the DSM-IV are meant to serve as guidelines to augment clinical judgment and are not meant to be used in a cookbook fashion. A GAF score does not have a direct correlation to the severity requirements in mental disorders listings. 65 Fed.Reg. 50746, 50764-65 (2000).
Here, the ALJ acknowledged Mr. Hibshman’s GAF scores but explained why they were not controlling. As the ALJ noted, a GAF score of 45 was assigned to Mr. Hibshman in a treatment plan that was electronically co-signed by Terry Brown, D.O., and dated January 3, 2008. During his evaluation, Mr. Hibshman admitted that he had not been participating in individual therapy or case management since November, 2006. Further, progress notes from October of 2007, December of 2007, and March of 2008, indicate that Mr. Hibshman was getting along well with others, including his children. A progress note from August of 2008, notes that Mr. Hibshman had experienced a real change with medication and was getting out in public.
As the ALJ noted, throughout the records from Health Resources of Arkansas, Mr. Hibshman was assigned GAF scores of differing levels, but only two of these scores were assigned by an acceptable medical source as defined in the Social Security Regulations. 20 C.F.R. § 416.913(a); (licensed social worker not deemed an acceptable medical source). Too, his GAF score of 45 assigned by Dr. Brown must be considered together with the score assigned by Nancy A. Bunting, Ph.D. Dr. Bunting assessed Mr. Hibshman at 50-60 on the GAF scale after examining and testing him during a consultative examination on March 19, 2010. The sixteen other GAF scores for Mr. Hibshman, that were not assigned by an acceptable medical source, ranged from 45 to 65.
The ALJ did not err in his assessment of the GAF scores. He considered these scores, along with the other evidence in the record, but did not err by not giving the scores greater weight.  (ALJ may afford greater weight to medical evidence and testimony than to GAF scores when the evidence requires it).
C. Residual Functional Capacity

Mr. Hibshman claims the ALJ’s determination of his residual functional capacity (“RFC”) is not supported by substantial evidence because the ALJ did not properly account for his mental impairments. (#13 at p. 10) The ALJ bears “the primary responsibility for assessing a claimant’s residual functional capacity based on all relevant evidence.” A claimant’s residual functional capacity is a medical question, and at least some medical evidence must support the ALJ’s RFC determination.  The ALJ may reject the opinion of any medical expert that is inconsistent with the medical record as a whole. 
Here, the ALJ found that Mr. Hibshman was capable of performing light work,3 except that he had to have a sit/stand option. Additionally, the ALJ found that, because of Mr. Hibshman’s mental conditions, he was limited to work involving simple tasks, simple job instructions, and only incidental contact with the public.
Mr. Hibshman does not dispute that he was capable of light work with a sit/stand option, but claims the ALJ did not properly consider his mental impairments when assessing his RFC. Specifically, Mr. Hibshman argues that his treatment records from Health Resources of Arkansas, and specifically the GAF scores assigned to him, indicate that he had “very substantial limitations.”
Again, the ALJ appropriately considered and discussed Mr. Hibshman’s GAF scores. The ALJ also considered and discussed, at some length, the treatment records from Health Resources of Arkansas. Progress notes from Health Resources indicate that Mr. Hibshman was getting along well with others, including his children, and that he was getting out more when he was on prescribed medication. On May 7, 2009, Mr. Hibshman reported that he only came to therapy because “they are making me”; and a note from the following week indicates he had reduced his Xanax intake because his anxiety was controlled.
The ALJ also considered reports from two separate consultative psychological examinations of Mr. Hibshman performed by Dr. Bunting. On her first examination of Mr. Hibshman on July 9, 2008, Dr. Bunting diagnosed panic disorder without agoraphobia and major depressive disorder. She stated that a number of symptoms required to meet the criteria for these two diagnoses were “not really there,” because the symptoms “seem to be presently ameliorated by his medications.” She stated that during the examination Mr. Hibshman was able to communicate and interact in a socially adequate manner, but that he had a limited capacity to cope with typical cognitive demands and to sustain concentration. Dr. Bunting also noted that he was “guarded” and “appeared to give only minimal level of effort.” She stated that during the examination, he displayed a “bad attitude” and “a willingness to exaggerate symptoms.”
As the ALJ notes, Dr. Bunting reported that the exaggeration of symptoms, poor effort, and poor cooperation persisted at the second consultative examination.  Dr. Bunting administered the Minnesota Multiphasic Personality Inventory-2. She noted the profile was invalid, however, because Mr. Hibshman was responding to questions in “random fashion” and stopped paying attention, resulting in what she termed a “fake-bad” profile.
She also administered a Computerized Assessment of Response Bias (“CARB”) test which is given when a person is believed to be malingering.  The results from the CARB test showed very poor effort and were consistent with those of examinees who are consciously exaggerating the extent and nature of their symptoms or impairments.  Finally, Dr. Bunting noted that Mr. Hibshman gave “minimal effort on the Wechsler Adult Intelligence Scale-III (“WAIS-III”) examination which resulted in a full scale IQ of 71.

Dr. Bunting concluded that Mr. Hibshman: (1) was able to communicate and interact in a socially adequate manner; (2) was able to communicate in an intelligible and effective manner; (3) had the capacity to cope with the typical mental/cognitive demands of basic work-like tasks (noting his score on the IQ test was “very likely an underestimation of his abilities”); (4) had some ability to attend and sustain concentration on basic tasks; (5) was able to sustain his persistence during the testing session and interview; and (6) had some ability to complete work-like tasks within an acceptable time frame.
Mr. Hibshman argues that the ALJ failed to properly consider the opinions and findings of Joan Shepard, L.P.C., who completed a mental residual functional capacity questionnaire. In her response to the questionnaire, Ms. Shepard concluded that Mr. Hibshman had no useful ability to function in 18 of 25 areas used for evaluating an individual’s mental ability for unskilled work. Mr. Hibshman’s reliance on Ms. Shepard’s opinion is misplaced.
First, Ms. Shepard is a licensed counselor, not a licensed physician or psychologist. Under 20 C.F.R. § 416.913(a), a licensed or certified psychologist qualifies as an “acceptable medical source” who can provide evidence to establish a medically determinable impairment. The ALJ may consider “other sources” such as therapists and counselors to show the severity of an impairment and how it affects the claimant’s ability to work, but not to establish the impairment. See 20 C.F.R. § 416.913(d).
Second, the ALJ may reject any opinion that is inconsistent with the medical record as a whole. Martise v. Astrue, 641 F.3d at 909, 926 (8th Cir. 2011) (treating physician’s opinion properly discounted when inconsistent with treatment notes or with medical evidence as a whole). In this case, Ms. Shepard’s opinion is not consistent with the treatment records from Health Resources of Arkansas or with the opinions of Dr. Bunting.
There is substantial evidence to support the ALJ’s conclusion that Mr. Hibshman had the residual functional capacity for light work with a sit/stand option where the work is limited to jobs that involve simple tasks, simple job instructions, and only incidental contact with the public.
IV. Conclusion:
There is sufficient evidence in the record as a whole to support the Commissioner’s determination that Steven Hibshman was not disabled within the meaning of the Act. Accordingly, his appeal is DENIED, and the Clerk is directed to close the case, this 6th day of April, 2012.


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If You Can Still Do Your Past Relevant Work, You Are Not Disabled

GAY v. ASTRUE

United States District Court, M.D. Alabama, Northern Division.

 


 

 

MEMORANDUM OPINION AND ORDER
TERRY F. MOORER, Magistrate Judge.
Joseph Allen Gay, (“Plaintiff” or “Gay”) applied for supplemental security income (SSI) under Title XVI of the Social Security Act (“the Act”),  in October 2009. . Gay alleged that he became disabled on February 4, 2007 after a motor vehicle accident. Gay timely filed for and received a hearing before an administrative law judge (“ALJ“) who rendered an unfavorable decision on January 25, 2011.  Gay in turn petitioned for review to the Appeals Council who rejected review of Gay’s case on March 25, 1011.  As a result, the ALJ’s decision became the final decision of the Commissioner of Social Security (“Commissioner”). The parties have consented to entry of final judgment by the United States Magistrate Judge.
The Court’s review of the Commissioner’s decision is a limited one. The Court’s sole function is to determine whether the ALJ’s opinion is supported by substantial evidence and whether the proper legal standards were applied. 
“The Social Security Act mandates that `findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive.'” Thus, this Court must find the Commissioner’s decision conclusive if it is supported by substantial evidence. Substantial evidence is more than a scintilla — i.e., the evidence must do more than merely create a suspicion of the existence of a fact, and must include such relevant evidence as a reasonable person would accept as adequate to support the conclusion. 
If the Commissioner’s decision is supported by substantial evidence, the district court will affirm, even if the court would have reached a contrary result as finder of fact, and even if the evidence preponderates against the Commissioner’s findings. The Court must view the evidence as a whole, taking into account evidence favorable as well as unfavorable to the decision. The Court “may not decide facts anew, reweigh the evidence, or substitute [its] judgment for that of the [Commissioner],” but rather it “must defer to the Commissioner’s decision if it is supported by substantial evidence.”

 

The Court will also reverse a Commissioner’s decision on plenary review if the decision applies incorrect law, or if the decision fails to provide the district court with sufficient reasoning to determine that the Commissioner properly applied the law. There is no presumption that the Commissioner’s conclusions of law are valid. 
II. STATUTORY AND REGULATORY FRAMEWORK
The Social Security Act’s general disability insurance benefits program (“DIB“) provides income to individuals who are forced into involuntary, premature retirement, provided they are both insured and disabled, regardless of indigence.  The Social Security Act’s Supplemental Security Income (“SSI”) is a separate and distinct program. SSI is a general public assistance measure providing an additional resource to the aged, blind, and disabled to assure that their income does not fall below the poverty line. Eligibility for SSI is based upon proof of indigence and disability. However, despite the fact they are separate programs, the law and regulations governing a claim for DIB and a claim for SSI are identical; therefore, claims for DIB and SSI are treated identically for the purpose of determining whether a claimant is disabled. Applicants under DIB and SSI must provide “disability” within the meaning of the Social Security Act which defines disability in virtually identical language for both programs. A person is entitled to disability benefits when the person is unable 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.
A “physical or mental impairment” is one resulting from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.
The Commissioner of Social Security employs a five-step, sequential evaluation process to determine whether a claimant is entitled to benefits.

STEP (1) Is the person presently unemployed?

STEP (2) Is the person’s impairment(s) severe?
STEP (3) Does the person’s impairment(s) meet or equal one of the specific impairments set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1?
STEP (4) Is the person unable to perform his or her former occupation?
STEP (5) Is the person unable to perform any other work within the economy?
An affirmative answer to any of the questions leads either to the next question, or, on steps three and five, to a finding of disability. A negative answer to any question, other than step three, leads to a determination of “not disabled.”

The burden of proof rests on a claimant through Step 4. Claimants establish a prima facie case of qualifying disability once they meet the burden of proof from Step 1 through Step 4. At Step 5, the burden shifts to the Commissioner, who must then show there are a significant number of jobs in the national economy the claimant can perform.

To perform the fourth and fifth steps, the ALJ must determine the claimant’s Residual Functional Capacity (RFC). RFC is what the claimant is still able to do despite his impairments and is based on all relevant medical and other evidence. Id. It also can contain both exertional and nonexertional limitations. At the fifth step, the ALJ considers the claimant’s RFC, age, education, and work experience to determine if there are jobs available in the national economy the claimant can perform.  To do this, the ALJ can either use the Medical Vocational Guidelines (“grids”) or hear testimony from a vocational expert (VE). 
The grids allow the ALJ to consider factors such as age, confinement to sedentary or light work, inability to speak English, educational deficiencies, and lack of job experience. Each factor can independently limit the number of jobs realistically available to an individual. Id. at 1240. Combinations of these factors yield a statutorily-required finding of “Disabled” or “Not Disabled.” 
III. ADMINISTRATIVE FINDINGS AND CONCLUSIONS
Gay testified that he was 53 years old and completed ninth grade.  Gay has not worked since 1998, nine years prior to his alleged onset date of February 4, 2007. In the past 15 years, Gay has worked as a forklift driver and furnace loader. Gay testified that he is now unable to work because of headaches, and balance and memory problems.  Gay claims that he has headaches about three to four times a week and he rates the headache pain as a ten on a ten point scale. Id. He testified that he has to lie down and rest for about four hours to relieve the pain.  Furthermore, Gay testified that his prescription Lortab does not eliminate his lower back pain.  He also testified that he has muscle spasms which start in his right arm and extend into his neck. Since August 2009, Gay has performed certain household chores, but he testified that the activities take longer to complete because of his dizziness.  Specifically he testified when he cuts wood, his hands stiffen and he has to sit down
The ALJ found that Gay had not engaged in substantial gainful activity since August, 24, 2009, the application date. He found that Gay’s status post-motor-vehicle accident in February 2007, his headaches, low back pain and hypertension were severe, but that he did not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (2011).  The ALJ found that Gay retained the residual functional capacity (“RFC”) to perform the full range of medium work which involves lifting no more than 50 pounds at a time with frequent lifting or carrying up to 25 pounds. (Medium, unskilled.)  Alternatively, the ALJ found that Gay could perform other work that exists in significant numbers in the national economy by applying Medical-Vocational Rule 203.19.  Thus, the ALJ concludes that Gay was not disabled as defined by the Act.
IV. MEDICAL HISTORY

Gay’s medical records are spotty. The first submitted records show Gay was injured in a motor vehicle accident on February 6, 2007, was hospitalized and discharged on February 10, 2007.  The accident occurred when Gay ran a red light while intoxicated and struck another car.  Gay was admitted to the hospital on a ventilator and placed in the intensive care unit. Gay sustained a pulmonary contusion and subarachnoid hemorrhage from the wreck, but was neurologically intact, awake, alert and able to move all extremities. He made good progress over the next few days and was discharged on February 10, 2007.  The next records show Gay received medication management for hypertension while incarcerated in the Coffee County Jail in March and April of 2010.

In June, 2010, Gay saw Dr. John M. Allgood, a family practitioner, for the first time and requested medication for hypertension and pain.  He also complained of difficulty swallowing, and vision problems, lower back pain, dizziness, fainting and numbness in his feet. Id. Plaintiff had a normal examination. Specifically, Dr. Allgood found Gay had a normal general appearance and his cardiovascular, musculoskeletal and neurological systems were also normal. Dr. Allgood ordered laboratory tests , and found Gay had an H. pylori infection. He prescribed antibiotics and blood pressure medications for Gay.
Gay saw Dr. Allgood again on July 29, 2010 with complaints of shortness of breath, back and shoulder pain, spasms in his right upper arm and choking. Dr. Allgood found Gay’s blood pressure was elevated and he assessed esophageal reflux and intercostal myositis.  He prescribed antibiotics and medication for esophageal reflux.  On September 8, 2010 Gay complained of a bad cold and requested a muscle relaxer and pain medication.  Dr. Allgood diagnosed acute bronchitis, esophageal reflux and intervertebral disc degeneration and prescribed medications.  On November 10, 2010, Gay complained that he continued to have “some trouble swallowing” and needed refills of his pain medications.  Dr. Allgood diagnosed dysphagia, joint pain, and hypertension.  He prescribed pain medication and a muscle relaxant, as well as medication for esophageal reflux.
In connection with his application for benefits, Gay underwent two consultative examinations. Gay was seen by Dr. James O. Colley, a general surgeon, on November 23, 2009 for a physical and neurological examination  In December, 2009, Eugene E. Fleece Ph.D, a State agency physician, conducted a mental evaluation of Gay. Gay complained to Dr. Colley about constant headaches, difficulty swallowing, low back pain, sinusitis, possible obstructive sleep apnea, poor balance and hypertension. He said over-the-counter medications did not help his headaches and that his memory is failing.  Gay said that he could walk about a half a mile, sit without any difficulty, stand for about an hour before having balance problems, care for his own personal needs, sweep for 20-30 minutes, make the bed, do laundry and dishes, cook, and shop, but did not do yard work or drive. He stated that since his accident, he has reduced his drinking from about a case and a half of beer to a six-pack of beer per week.
Dr. Colley reported on physical examination that Gay spoke clearly was well-built, well-nourished, fully oriented and in no acute distress. Gay had normal gait, station and coordination and was able to squat and stand without assistance. He had full range of spinal and joint motion except for mild pain on full passive range of right shoulder motion. Gay had no trouble getting on and off the exam table and moving from a seated position to a standing position. (Tr. 222, 224-225). Gay also had full strength and normal sensation and reflexes. (Tr. 225). Dr. Colley noted a normal examination but diagnosed traumatic headaches, sinusitis, a history of dysphagia and alcohol abuse and myofacial upper thoracic spine pain. (Tr. 226).
Dr. Fleece stated in his “Mental Summary” of Gay that “[w]e don’t have any reason to think there is anything substantial to evaluate in terms of down memory, so would not suggest a CE.” In making this determination, Dr. Fleece asked his assistant, Gail F. Johnson, to contact Gay and ask him to give examples of his memory impairment. Gay gave the example of having to use a grocery list, and failing to remember the days of the week. Dr. Fleece dismissed the first as “not impressive” and the second as “very common”.  Furthermore, Dr. Fleece noted that Gay “rambled a good deal” when asked to give examples of memory impairments “as if he was trying to produce something in support of his allegation.”
Dr. Fleece also discounted Gay’s 2007 automobile accident as a cause of any “cognitive damage” because there were no records of such impairment over the last two years. Dr. Fleece noted Gay’s “vague” complaints of memory, understanding and dealing with others, but concluded he “does not sound withdrawn” because he cooks out with friends, watches games, and has a fianceé. Moreover, Dr. Fleece was unimpressed by Gay’s claim of confusion with changes, noting “he handles money well in all areas.”
V. ISSUES

Gay raises five issues for judicial review:
(1) Whether the ALJ failed to fulfill his duty to develop the record by not providing an RFC supported by a physician’s opinion? 
(2) Whether the ALJ failed to fulfill his duty to develop the record by not following the Psychiatric Review Technique Form. (PRTF)? 
(3) Whether the ALJ failed to address all the limitations of the claimant’s severe impairments in the RFC assessment? 
(4) Whether the ALJ considered past relevant work that was not substantial, gainful activity in finding that Gay is able to perform his past work as a forklift driver and furnace loader? 
(5) Whether the ALJ erred in relying on the testimony of Patrick Sweeney, the VE? 
VI. DISCUSSION

Substantial Evidence Supports the ALJ’s Finding that Plaintiff Could Perform a Full Range of Medium Work.6
The ALJ concluded that Gay had the residual functional capacity (“RFC”) to perform a full range of medium work.  The Commissioner’s decision is due to be affirmed “if it is supported by substantial evidence and the correct legal standards were applied.”  “Substantial evidence is less than a preponderance, but rather such relevant evidence as a reasonable person would accept as adequate to support a conclusion.” 
In making this finding, the ALJ stated that he carefully considered the record as a whole. Indeed, the ALJ thoroughly summarized Gay’s complaints of headaches, dizziness, low back pain and high blood pressure and their severity as presented by Gay at the hearing before the ALJ. However, the ALJ noted a lack of any medical treatment for Gay from February, 2007 until he received treatment for hypertension during his incarceration at the Coffee County Jail in March and April 2010. The ALJ also relied on Dr. Colley’s consultative exam findings made in November, 2009, which detailed no objective findings which would corroborate Plaintiff’s complaints of pain, and Dr. Allgood’s treatment notes, beginning in June, 2010, which also showed few objective findings and in which he recommended only the most conservative treatment possible.  Thus, the court concludes that the ALJ’s determination is one that a reasonable person would accept, and therefore, substantial evidence exists to support the ALJ’s conclusion as to Gay’s RFC. 
Gay further argues that “the correct legal standards were [not] applied”,  since the RFC finding was not directly supported by a treating or examining physician’s opinion as required by Coleman v. Barnhart, 264 F.Supp. 1007. However, this court has previously addressed this very argument in, and distinguished Coleman on the basis of its facts and because the Coleman court gave no citation to any source of law requiring a physician’s assessment for the purposes of making an RFC determination. 
This court further explained that it was persuaded by the reasoning of Judge Foy Guin in Langley v. Astrue. Indeed, Langley disagreed with the Coleman reasoning finding that it “attempt[s] to place the burden of proving the claimant’s RFC on the Commissioner at step five” and this shifting of the burden is “inconsistent with the Commissioner’s regulations, Supreme Court precedent and unpublished decisions in this Circuit.”  Accordingly the Court concludes that Gay’s argument fails and the ALJ did not err in finding Plaintiff’s RFC without the benefit of a physician’s assessment in the record.
The ALJ Reasonably Evaluated Plaintiff’s Alleged Mental Problems.
Gay argues that the Commissioner’s decision should be reversed because the ALJ failed to fulfill his duty to develop the record by not completing a Psychiatric Review Technique Form (“PRTF”) or at least using its mode of analysis. The Commissioner argues that even if the ALJ should have included a PRTF, either by appending the document or incorporating the analysis, that the error was harmless and should not be a cause for reversal of the ALJ’s decision. See Diorio v. Heckler, 721 F.2d 726 (11th Cir. 1983) (holding error harmless where appropriate facts are applied to reach a conclusion and are supported by the record.)

The ALJ, discounted Gay’s allegations of mental problems stating that although he
“alleged some complaints in his activities of daily living; [Gay] however, testified that he is able to cook out with friends, watch sports games and he reported that he has a fiancee.” [sic]
Moreover, the record demonstrates that Gay could read and write, perform basic math, understand and respond to questions at the hearing before the ALJ, provide for his own personal care, prepare meals, do housework and some yard work and walk where he needed to go.  Additionally the record demonstrates that Gay was able to provide detailed and comprehensive information about his past medical history to Dr. Colley and Dr. Allgood.  Further, during the consultative examination with Dr. Colley, Gay was consistent, gave good effort, had clear speech, and was fully alert and oriented.  It is significant that Gay did not complain of any cognitive difficulties to his treating physician, Dr. Allgood and the record contains no medical source observations of any sort of cognitive or mental problems.
Additionally, Eugene E. Fleece Ph.D, a State agency physician, stated in his “Mental Summary” of Gay that “[w]e don’t have any reason to think there is anything substantial to evaluate in terms of down memory, so would not suggest a CE.” Dr. Fleece also discounted Gay’s 2007 automobile accident as a cause of any “cognitive damage” because there were no records of such impairment over the last two years. Dr. Fleece noted Gay’s “vague” complaints of memory, understanding and dealing with others, but concluded he “does not sound withdrawn” because he cooks out with friends, watches games, and has a fianceé. Moreover, Dr. Fleece was unimpressed by Gay’s claim of confusion with changes, noting “he handles money well in all areas.” Accordingly, the court concludes because substantial evidence exists to support the ALJ’s conclusion that Gay’s allegations of mental problems were not supported by the record, the ALJ’s failure to include a PRTF, was harmless error and is not a ground for reversal of the ALJ’s decision. 
The ALJ did not commit reversible error by considering past relevant work that was not substantial, gainful activity.
Gay’s earnings record demonstrates that he did not earn at least an average of $500.00 per month from 1991 to 1998. According to regulations, “past relevant work” is described as work Plaintiff performed within the past fifteen years that was substantial, gainful activity and lasted long enough for the claimant to learn to do it. Generally, monthly earnings do not qualify as substantial gainful activity when Plaintiff earned less than or equal to $500.00 per month between January 1990 and June 1999. 
The Commissioner admits that the ALJ erred in concluding that Gay’s work within the past 15 years was “past relevant work” as defined under the Act. The court concludes, however, that this error was harmless because the ALJ made an alternative finding at step five. Specifically, the ALJ found that on the basis of Plaintiff’s residual functional capacity for a full range of medium work, Medical-Vocational Rule 203.19 allowed for the determination that Plaintiff was not disabled.  The burden of showing that an error is harmful normally falls upon the party attacking the agency’s determination. When an incorrect application of the regulations results in harmless error because the correct application would not alter the ALJ’s ultimate conclusion, there is no basis for reversal. Thus, the court concludes the ALJ did not commit reversible error by considering past relevant work that was not substantial, gainful activity.

The ALJ did not commit reversible error by relying on the testimony of the Vocational Expert.
Gay argues that the ALJ erred in relying on the testimony of Mr. Sweeney, the VE, because it does not support the ALJ’s decision. Specifically, Gay argues that the ALJ quoted the VE as testifying that “claimant was able to return to all of this past relevant work within his [RFC]. Gay, however, also points out that the VE noted he was unsure that Gay’s “past relevant work” qualified as “substantial gainful employment.” For the reasons stated supra the court concludes that any alleged error based on analysis involving Gay’s “past relevant work” is harmless because of the ALJ’s alterative finding that Plaintiff’s residual functional capacity for a full range of medium work allowed for the determination that Plaintiff was not disabled pursuant to Medical-Vocational Rule 203.19. 
Next, Gay points to the following hypothetical as further evidence that the ALJ erred in relying on the testimony of the VE.
THE COURT: Consider a hypothetical individual with the same age, education, and work experience as the claimant who has the physical capabilities and limitations as testified to by the claimant. Can such a hypothetical individual do any competitive work?
SWEENEY: Well, based on his testimony, the thing that would come to my attention most is the pain, the reported pain level of 10, which at that level, taking that at face value, that would preclude employment, but nothing else that I heard really.
  The court recognizes that the VE accepted Gay’s “reported pain level of 10 . . . at face value” in concluding that an individual who experiences such pain would be unable to work.  However, the ALJ made no reference to this statement in his opinion; nor did anyone further question the VE as to whether the entire record supported Gay’s statements of disabling pain. Thus, the hypothetical is limited to the assumption made by the VE based on the “face value” of Gay’s complaints of pain and does not include any assessment of Gay’s credibility.
If proof of disability is based upon subjective evidence and a credibility determination is critical to the decision, “the ALJ must either explicitly discredit such testimony or the implication must be so clear as to amount to a specific credibility finding.”  The reasons given for discrediting pain testimony must be based on substantial evidence. Thus, the court now turns its attention to the ALJ’s conclusion with respect to Gay’s allegations of pain and the reasons for that conclusion.

The ALJ concluded “[a]fter careful consideration of the evidence” that Gay’s
“medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the claimant’s statements concerning the intensity, persistence and limiting effects of these symptoms are not credible to the extent they are inconsistent with the above residual functional capacity assessment.”
In support of this conclusion, the ALJ pointed to Gay’s own testimony and to various medical facts and opinions in the record. With respect to the headaches, the ALJ recognized that Gay reported some limitations on his daily routine, but noted that Gay is able to cook out with friends, watch sports, and is engaged. Furthermore, the ALJ assigned “significant weight” to the assessment of Dr. Fleece, consultative expert, who opined that Gay “was not cognitively impaired.”  Additionally, the ALJ assigned “great weight” to the opinions and findings of consultative examiner, Dr. Colley, who reported Gay’s “examination was essentially unremarkable.” Dr. Colley further noted Gay “had full range of motion of all extremities with no deformities . . . normal gait, normal station and normal coordination.” Finally, the ALJ recognized that Gay “has not required hospitalizations or emergency room visits for any of his impairments”; and “[i]n fact, there is little medical evidence to support his allegations.” Accordingly, the court finds that the ALJ “explicitly” discredited Gay’s allegations of pain, and the reasons given by the ALJ are supported by “substantial evidence”. Thus, the court concludes that in the context of this case the ALJ did not err in the limited use of the VE’s testimony.
VII. CONCLUSION
Pursuant to the findings and conclusions detailed in this Memorandum Opinion, the Court concludes that the ALJ’s non-disability determination is supported by substantial evidence and proper application of the law. It is, therefore, ORDERED that the decision of the Commissioner is AFFIRMED. A separate judgment is entered herewith.
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A Low IQ Score May Qualify You For Social Security Benefits.

SLATER v. ASTRUE

March 23, 2012.

Demon Victorell Slater, Plaintiff, represented by Quinn Eric Brock, Brock & Stout.
Michael J. Astrue, Commissioner of Social Security, Defendant, represented by Dorrelyn K Dietrich, Social Security Admin, Office of General Counsel Region VIII, John Jay Lee, Social Security Administration, & Robert Randolph Neeley, U.S. Attorney’s Office.

MEMORANDUM OPINION AND ORDER
TERRY F. MOORER, Magistrate Judge.
Demon V. Slater (“Plaintiff” or “Slater”) originally applied for supplemental security income under Title XVI of the Social Security Act (“the Act”), 42 U.S.C. §§ 1381 et seq., on August 23, 2007. After being denied, Slater timely filed for and received a hearing before an administrative law judge (“ALJ“) who rendered an unfavorable decision on February 18, 2010. Slater subsequently petitioned for review to the Appeals Council who rejected review of Slater’s case on March 17, 2011.  As a result, the ALJ’s decision became the final decision of the Commissioner of Social Security (“Commissioner”). Id. Judicial review proceeds pursuant to 42 U.S.C. § 405(g), and 28 U.S.C. § 636(c). After a thorough review of the record in this case and the briefs of the parties, the Court concludes that the decision of the Commissioner should be REVERSED and this case REMANDED to the Commissioner for further proceedings.
I. NATURE OF THE CASE
Slater seeks judicial review of the Commissioner’s decision denying his application for disability insurance benefits. United States District Courts may conduct limited review of such decisions to determine whether they comply with applicable law and are supported by substantial evidence. 42 U.S.C. § 405. The court may affirm, reverse and remand with instructions, or reverse and render a judgment. Id.
The Court’s review of the Commissioner’s decision is a limited one. The Court’s sole function is to determine whether the ALJ’s opinion is supported by substantial evidence and whether the proper legal standards were applied. 
“The Social Security Act mandates that `findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive.'” Thus, this Court must find the Commissioner’s decision conclusive if it is supported by substantial evidence. Substantial evidence is more than a scintilla — i.e., the evidence must do more than merely create a suspicion of the existence of a fact, and must include such relevant evidence as a reasonable person would accept as adequate to support the conclusion.
If the Commissioner’s decision is supported by substantial evidence, the district court will affirm, even if the court would have reached a contrary result as finder of fact, and even if the evidence preponderates against the Commissioner’s findings. The Court “may not decide facts anew, re-weigh the evidence, or substitute [its] judgment for that of the [Commissioner],” but rather it “must defer to the Commissioner’s decision if it is supported by substantial evidence.” 
The Court will also reverse a Commissioner’s decision on plenary review if the decision applies incorrect law, or if the decision fails to provide the district court with sufficient reasoning to determine that the Commissioner properly applied the law.
III. STATUTORY AND REGULATORY FRAMEWORK
The Social Security Act’s general disability insurance benefits program (“DIB“) provides income to individuals who are forced into involuntary, premature retirement, provided they are both insured and disabled, regardless of indigence. See 42 U.S.C. § 423(a). The Social Security Act’s Supplemental Security Income (“SSI”) is a separate and distinct program. SSI is a general public assistance measure providing an additional resource to the aged, blind, and disabled to assure that their income does not fall below the poverty line. Eligibility for SSI is based upon proof of indigence and disability.  However, despite the fact they are separate programs, the law and regulations governing a claim for DIB and a claim for SSI are identical; therefore, claims for DIB and SSI are treated identically for the purpose of determining whether a claimant is disabled.  Applicants under DIB and SSI must provide “disability” within the meaning of the Social Security Act which defines disability in virtually identical language for both programs.  A person is entitled to disability benefits when the person is unable 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.
A “physical or mental impairment” is one resulting from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.
The Commissioner of Social Security employs a five-step, sequential evaluation process to determine whether a claimant is entitled to benefits. 
(1) Is the person presently unemployed?
(2) Is the person’s impairment(s) severe?
(3) Does the person’s impairment(s) meet or equal one of the specific impairments set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1?3
(4) Is the person unable to perform his or her former occupation?
(5) Is the person unable to perform any other work within the economy?
An affirmative answer to any of the questions leads either to the next question, or, on steps three and five, to a finding of disability. A negative answer to any question, other than step three, leads to a determination of “not disabled.”
The burden of proof rests on a claimant through Step 4.  Claimants establish a prima facie case of qualifying disability once they meet the burden of proof from Step 1 through Step 4. At Step 5, the burden shifts to the Commissioner, who must then show there are a significant number of jobs in the national economy the claimant can perform. Id.
To perform the fourth and fifth steps, the ALJ must determine the claimant’s Residual Functional Capacity (“RFC”). Id. at 1238-39. RFC is what the claimant is still able to do despite his impairments and is based on all relevant medical and other evidence. Id. It also can contain both exertional and nonexertional limitations. Id. at 1242-43. At the fifth step, the ALJ considers the claimant’s RFC, age, education, and work experience to determine if there are jobs available in the national economy the claimant can perform. Id. at 1239. To do this, the ALJ can either use the Medical Vocational Guidelines (“grids”) or hear testimony from a vocational expert (VE). Id. at 1239-40.
The grids allow the ALJ to consider factors such as age, confinement to sedentary or light work, inability to speak English, educational deficiencies, and lack of job experience. Each factor can independently limit the number of jobs realistically available to an individual. Id. at 1240. Combinations of these factors yield a statutorily-required finding of “Disabled” or “Not Disabled.” Id.
IV. ADMINISTRATIVE FINDINGS AND CONCLUSIONS
Slater, age 36 at the time of the hearing, completed the twelfth grade and received a certificate of completion. Slater had special education classes in high school and has limited reading and writing abilities. Slater performed past relevant work as an industrial cleaner (unskilled, medium). Slater has not engaged in substantial gainful activity since his alleged disability onset date of August 23, 2007. Slater has not “ever really worked,” except for a couple positions which spans from a few days to a few weeks. Slater’s mother supports him from her fixed income. Slater claims he is unable to work because he suffers from major depression, anxiety, diabetes, depression, and an IQ score that falls within the range of mental retardation.  Slater received disability benefits in the past until the benefits were terminated upon his incarceration.
Slater’s alleged disabilities stem from multiple sources.A doctor diagnosed Slater as suffering from diabetes in 1997. He received regular treatment to control his diabetes, while he received disability benefits and also while incarcerated, but upon release Slater has been unable to afford his medications except when he was able to attain his medications free of charge. Id. Slater alleges that his diabetes has caused him to be admitted to the hospital and the doctors have had to increase his insulin dosage. Slater alleges that he has diabetic neuropathy which causes pain and numbness in his lower legs, feet, and sometimes in his left hand. Id. Slater also alleges that he suffers from hypertension (high blood pressure). Id. Slater is also unable to afford the medications to control his neuropathy and hypertension.
Since Slater’s release from incarceration, he alleges that he suffers from anxiety and major depression. Slater alleges that his anxiety and depression cause him to randomly begin crying, to feel shortness of breath and pain in his chest, and difficulty sleeping. Slater claims that when on his medication these symptoms subside and he is able to sleep well, but at the moment he is unable to afford his medications. Slater also claims that he has difficulty getting along with other people and mostly keeps to himself. Slater alleges that he suffers from mental retardation as defined in the listings of impairments section 12.05. IQ tests reveal Slater has a score of 64 in verbal intelligence IQ, 62 in performance IQ, and a full scale IQ of 60.  Slater was in special education classes in high school and alleges that he cannot read or spell very well.  Slater also claims that while watching television he is unable to concentrate or follow the storyline.
Slater received treatment from various medical practitioners and the ALJ considered the medical records from these practitioners.  The records of Charles A. Wood, M.D. from September and October of 2002 show that Slater was monitored for hypertension, diabetes, and peripheral neuropathy.  Slater had elevated glucose and hemoglobin A1C levels. Id. Also, Dr. Woods found Slater suffers from depression post a suicide attempt. 
In November of 2007, Mark B. Ellis, D.O. performed a consultative physical evaluation. Id. Slater reported to Dr. Ellis that he sufferes from depression, poor reading skills, diabetes, neuropathy with bilateral leg burning and numbness, decreased sensation to light touch in the feet, and leg weakness.  Dr. Ellis found decreased sensation to light touch from Slater’s knees down “becoming more prominent” at the feet, as well as decreased sensation on the bottom and back of Slater’s feet. Dr. Ellis’ diagnostic impression was “poorly controlled diabetes with diabetic neuropathy; and hypertension, high cholesterol, and depression all by history.” Dr. Ellis recommended optimal diabetic care; however, a month later Slater was admitted to Dale Medical Center for uncontrolled diabetes mellitus with a glucose level of 700, blurred vision, nausea, vomiting, hypertension, and neuropathy. 
Also in November of 2007, Randall Jordan, Psy.D saw Slater for a consultative mental evaluation. Slater reported depression with chronic sadness, sleep disturbances, and being in special education classes while in school. Id. Dr. Jordan noted that Slater exhibited restricted affect, compromised memory, and below average fund of information. Dr. Jordan administered a Wechsler Adult Intelligence Scale Third Edition (“Wechsler”) which tested Slater on verbal, performance, and full scale IQ. Slater earned scores of 64, 62, and 60, respectively. Dr. Jordan noted that these scores are indicative of intellect in the range of mental retardation. Id. However, Dr. Jordan also noted a diagnostic impression of malingering.
In June of 2009, Slater returned to Dale Medical Center with complaints of chest pain. In July of 2009, Slater underwent a stress test which revealed “resting baseline hypertensive heart disease and a marked accelerated hypertensive response to chemical stress.”  After being released from Dale Medical Center, Connie Chandler, M.D. followed Slater for chest pain, diabetes, and hyperlipidemia.  Slater received numerous medications to control his symptoms. Id. The ALJ noted that no noticeable physical symptoms or complications associated with hyperlipidemia were evidenced, and because of such the ALJ found that it has no effect on Slater’s ability to work.  In August of 2009, Dr. Fernando Lopez at Spectra Care saw Slater for his “depressive disorder” and “psychotic features.”  Slater claimed he had “sleep disturbances with intermittent nightmares, visual hallucinations, panic attacks, nervousness, and paranoia.” Id. Dr. Lopez proscribed psychotropic medications to Slater to manage his depressive and psychotic symptoms. Id.
V. ISSUES
Slater raises two issues for judicial review:
(1) Whether the ALJ failed to consider if Slater’s medically determinable impairments met or equaled listing 12.05(C); and
(2) Whether the ALJ’s Residual Functional Capacity finding failed to include the required “function-by-function” assessment. See Doc. 12 at 3.
VI. DISCUSSION AND ANALYSIS
The plaintiff raises several issues and arguments related to this Court’s ultimate inquiry of whether the Commissioner’s disability decision is supported by the proper legal standards and substantial evidence.  “[n]o presumption of validity attaches to the Secretary’s determination of the proper legal standards to be applied in evaluating claims”). However, the Court pretermits discussion of the plaintiff’s specific arguments because the Court concludes that the ALJ erred as a matter of law at step three of the sequential analysis. Ergo, the ALJ’s conclusion that the plaintiff is not disabled is not supported by substantial evidence.
The ALJ notes:
At step three, the undersigned must determine whether the claimant’s impairment or combination of impairments meets or medically equals the criteria of an impairment listed in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925, and 416.926). If the claimant’s impairment or combination of impairments meets or medically equals the criteria of a listing and meets the duration requirement (20 CFR 416.909, the claimant is disabled.
The burden of proof rests on a claimant to establish a prima facie case of qualifying disability. Phillips, 357 F.3d at 1237-39. Slater argues that “the ALJ failed to consider whether Mr. Slater’s medically determinable impairments met or equaled listing 12.05(C).” (Pl. Br. 3). Slater provided sufficient medical evidence to meet the prima facie requirement in Phillips, 357 F.3d at 1237-39. The record is replete with references to anxiety and depression, with the ALJ also noting the “full scale IQ scores of 64, 62, and 60.”  Plaintiff directly argues the listing of 12.05(C) in the record of the hearing as well as testifying to other limiting factors.
In Fitts v. Massanari, the court “notes that the ALJ made an error more fundamental regarding the listings in that he never once mentioned Listing 12.05, specifically 12.05(C), in his decision denying benefits.”  The court held that the ALJ erred in failing to include mild mental retardation in the list of severe impairments and in failing to analyze the evidence in light of the specific requirements of listing 12.05. Id. at *2. In Fitts the court noted that the ALJ’s finding documented both a physical impairment which imposed an “additional and significant work-related limitation of function” and that the record also contained evidence of a valid verbal, performance or full scale IQ score of 60 through 70. Id.
The Court recognizes that a valid IQ score does not mean that conclusive evidence of mental retardation exists, however the validity of IQ score must be addressed by the ALJ. Thomas v. Barnhart,  (11th Cir. Dec. 7, 2004)(where the Eleventh Circuit specifically noted that the ALJ did not specifically address the validity of the claimant’s IQ score of 69 and there was “significant evidence” that the score was valid and remanded the case so that the ALJ may properly consider the validity of the claimant’s IQ score.). While the Court concludes there is some question as to the validity and accuracy of the IQ score of Slater, there is no analysis done by the ALJ for the Court to consider. See e.g. Outlaw v. Barnhart, 197 Fed.Appx. 825 (11th Cir. 2006) (where the court held that a “valid IQ score is not conclusive of mental retardation when the IQ score is inconsistent with other evidence in the record about claimant’s daily activities.”).
The Commissioner argues that Slater did not carry his burden to produce evidence that he met the criteria of the listing. (Def. Br. 13, at 7). “[A] claimant must have a diagnosis included in the Listings and must provide medial reports documenting that the conditions meet the specific criteria of the Listings and the duration requirement.”  The ALJ must consider whether the claimant meets or equals the listings presented by the claimant.  While the ALJ does not need to mechanically recite the fact that a claimant does not meet a listing in his decision, and that the failure to meet the listing may be implied from the record, the ALJ must develop a full and fair record sufficient for this Court to review.  Additionally, the Court notes that Slater bears a burden “of proving that he is disabled, and consequently, he is responsible for producing evidence in support of his claim.” The Court makes the limited ruling that the issue of mental retardation pursuant to the listing 12.05(C) was raised sufficiently by Slater to show a prima facie case of a possible ailment that, by itself, can be found to be disabling, or disabling in conjunction with other disabilities, and the ALJ failed to address it in either the hearing or the opinion.  The Court notes that the ALJ directly addressed and discussed the Listings for 12.04 and 12.06, looking at the “paragraph B” and “paragraph C” requirements, but conspicuously failed to address the 12.05(C) Listing that was directly argued by the Claimant.
Furthermore, because the ALJ did not recognize the evidence that Slater suffers from mental retardation, he did not properly consider the effects of this impairment on Slater’s ability to work. Consequently, the Court cannot determine whether the ALJ’s conclusion that Slater is not disabled is properly supported by substantial evidence.  It is plain that the plaintiff suffers from physical and non-physical impairments, but it is less clear as to the effect of those impairments. “Even a `mild’ mental impairment may `prevent [a] claimant from engaging in the full range of jobs contemplated by the exertional category for which the claimant otherwise qualifies.'” 
For these reasons, the Court concludes that the Commissioner erred as a matter of law, and that the case warrants remand for further proceedings regarding whether the IQ score is valid, and if there are other mental or physical impairments that would cause the claimant to meet the listing under 12.05(C). The ALJ must consider every impairment alleged by the plaintiff and determine whether the alleged impairments are sufficiently severe — either singly or in combination — to create a disability.  All of the plaintiff’s impairments must be considered in combination even when the impairments considered separately are not severe. In light of the ALJ’s failure to fully and fairly consider the evidence in the record of the plaintiff’s possible mental retardation, the Court concludes that the ALJ failed to meet his burden in this regard. As a result of his failure to consider the plaintiff’s impairments in combination, doubt is necessarily cast upon the ALJ’s conclusion that the plaintiff is not disabled.
V. ConclusionAccordingly, this case will be reversed and remanded to the Commissioner for further proceedings consistent with this opinion. A separate order will be entered.
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A Social Security Judge Can Tell When A Claimant Lies Under Oath.

GORREMANS v. ASTRUE

United States District Court, D. Idaho. March 16, 2012.

Mickael Gorrmans, Plaintiff, represented by Louis Garbrecht.
Commissioner Michael J. Astrue, Defendant, represented by Benjamin J Groebner, SOCIAL SECURITY ADMINISTRATION & Joanne P Rodriguez, US ATTORNEY’S OFFICE.

 

 

RONALD E. BUSH, Magistrate Judge.
Now pending before the Court is Petitioner Mickael Gorremans’ Petition for Review filed September 16, 2010, seeking review of the Social Security Administration’s final decision to deny his disability benefits. This action is brought pursuant to 42 U.S.C. § 405(g). Having carefully reviewed the record and otherwise being fully advised, the Court enters the following Memorandum Decision and Order.
I. ADMINISTRATIVE PROCEEDINGS
On January 9, 2009, Mickael Gorremans (“Petitioner”) applied for SSI disability benefits, alleging a disability onset date of December 24, 2008, when he was 56 years old.  Petitioner’s claim was initially denied and, again, denied on reconsideration. Petitioner timely filed a Request for Hearing before an Administrative Law Judge (“ALJ”).  On February 9, 2010, ALJ James W. Sherry held a hearing in Spokane, Washington at which time Petitioner, represented by attorney Louis Garbrecht, appeared and testified.  A vocational expert, K. Diane Kramer, also appeared and testified.  At the time of the hearing, Petitioner had past relevant work as a groundskeeper, machine operator, janitor, floor cleaner/buffer, certified nurses assistant, and home health aide.
On April 8, 2010, the ALJ issued a decision, denying Petitioner’s claims, finding that Petitioner was not disabled within the meaning of the Social Security Act.  Petitioner timely requested review from the Appeals Council on June 3, 2010. The Appeals Council then denied review on August 23, 2010  rendering the ALJ’s decision the Commissioner’s final decision. Plaintiff now seeks judicial review of the Commissioner’s decision to deny benefits. Petitioner contends the ALJ erred by not giving controlling weight to the opinion of his treating physician, Dr. Dirks, and improperly rejecting Petitioner’s own testimony. He also argues that the residual functional capacity finding is not supported by the record and that Medical-Vocational Guideline 202.06 directs a finding of disabled.
II. STANDARD OF REVIEW

To be upheld, the Commissioner’s decision must be supported by substantial evidence and based on proper legal standards. 42 U.S.C. § 405(g). Findings as to any question of fact, if supported by substantial evidence, are conclusive. 42 U.S.C. § 405(g). In other words, if there is substantial evidence to support the ALJ’s factual decisions, they must be upheld, even when there is conflicting evidence. 
“Substantial evidence” is defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.  The standard requires more than a scintilla but less than a preponderance, and “does not mean a large or considerable amount of evidence.”
With respect to questions of fact, the role of the Court is to review the record as a whole to determine whether it contains evidence that would allow a reasonable mind to accept the conclusions of the ALJ.  The ALJ is responsible for determining credibility and resolving conflicts in medical testimony, resolving ambiguities, and drawing inferences logically flowing from the evidence. Where the evidence is susceptible to more than one rational interpretation in a disability proceeding, the reviewing court may not substitute its judgment or interpretation of the record for that of the ALJ. 
With respect to questions of law, the ALJ’s decision must be based on proper legal standards and will be reversed for legal error. Matney, 981 F.2d at 1019. The ALJ’s construction of the Social Security Act is entitled to deference if it has a reasonable basis in law. See id. However, reviewing federal courts “will not rubber-stamp an administrative decision that is inconsistent with the statutory mandate or that frustrates the congressional purpose underlying the statute.” 
III. DISCUSSION
A. Sequential Process
In evaluating the evidence presented at an administrative hearing, the ALJ must follow a sequential process in determining whether a person is disabled in general (see 20 C.F.R. §§ 404.1520, 416.920) — or continues to be disabled (see 20 C.F.R. §§ 404.1594, 416.994) — within the meaning of the Social Security Act.
The first step requires the ALJ to determine whether the claimant is engaged in substantial gainful activity (“SGA”). 20 C.F.R. §§ 404.1520(a)(4)(I), 416.920(a)(4)(I). SGA is defined as work activity that is both substantial and gainful. “Substantial work activity” is work activity that involves doing significant physical or mental activities. 20 C.F.R. §§ 404.1572(a), 416.972(a). “Gainful work activity” is work that is usually done for pay or profit, whether or not a profit is realized. 20 C.F.R. §§ 404.1572(b), 416.972(b). If the claimant has engaged in SGA, disability benefits are denied, regardless of how severe her physical/mental impairments are and regardless of her age, education, and work experience. 20 C.F.R. §§ 404.1520(b), 416.920(b). If the claimant is not engaged in SGA, the analysis proceeds to the second step. Here, the ALJ found that Petitioner had not engaged in SGA since January 9, 2009, the application date. (AR 16).
The second step requires the ALJ to determine whether the claimant has a medically determinable impairment, or combination of impairments, that is severe and meets the duration requirement. 20 C.F.R. § 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An impairment or combination of impairments is “severe” within the meaning of the Social Security Act if it significantly limits an individual’s ability to perform basic work activities. 20 C.F.R. §§ 404.1520(c), 416.920(c). An impairment or combination of impairments is “not severe” when medical and other evidence establish only a slight abnormality or a combination of slight abnormalities that would have no more than a minimal effect on an individual’s ability to work. 20 C.F.R. §§ 404.1521, 416.921. If the claimant does not have a severe medically determinable impairment or combination of impairments, disability benefits are denied. 20 C.F.R. §§ 404.1520(c), 416.920(c). Here, the ALJ found that Petitioner had the following severe impairments: “multilevel cervical degenerative disk disease with facet arthrosis, status post disectomy and fusion and cervical laminectomy at C3 & C4 with autograft; and central cord syndrome.” (AR 16).
The third step requires the ALJ to determine the medical severity of any impairments; that is, whether the claimant’s impairments meet or equal a listed impairment under 20 C.F.R. Part 404, Subpart P, Appendix 1. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the answer is yes, the claimant is considered disabled under the Social Security Act and benefits are awarded. 20 C.F.R. §§ 404.1520(d), 416.920(d). If the claimant’s impairments neither meet nor equal one of the listed impairments, the claimant’s case cannot be resolved at step three and the evaluation proceeds to step four. Id. Here, the ALJ concluded that Petitioner does not have an impairment (or combination of impairments) that meets or medically equals a listed impairment (AR 16).
The fourth step of the evaluation process requires the ALJ to determine whether the claimant’s residual functional capacity is sufficient for the claimant to perform past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). An individual’s residual functional capacity is her ability to do physical and mental work activities on a sustained basis despite limitations from her impairments. 20 C.F.R. §§ 404.1545, 416.945. Likewise, an individual’s past relevant work is work performed within the last 15 years or 15 years prior to the date that disability must be established; also, the work must have lasted long enough for the claimant to learn to do the job and be engaged in substantial gainful activity. 20 C.F.R. §§ 404.1560(b), 404.1565, 416.960(b), 416.965. Here, the ALJ ruled that Petitioner has the residual functional capacity to perform the full range of medium work as defined in 20 C.F.R. § 416.967(c). The ALJ also determined that Petitioner could perform his past relevant work as a janitor, certified nurse’s assistant, home health aide, and groundskeeper. The ALJ determined that this work does not require performance of work-related activities precluded by Petitioner’s residual functional capacity. (AR 21).
In the fifth and final step, if it has been established that a claimant can no longer perform past relevant work because of his impairments, the burden shifts to the Commissioner to show that the claimant retains the ability to do alternate work and to demonstrate that such alternate work exists in significant numbers in the national economy. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v), 404.1520(f), 416.920(f); see also Matthews v. Shalala, 10 F.3d 678, 681 (9th Cir. 1993). If the claimant is able to do other work, he is not disabled; if the claimant is not able to do other work and meets the duration requirement, he is disabled. Because the ALJ found Petitioner capable of performing past relevant work, he did not have to proceed to step five. However, the ALJ did found that even if Petitioner was restricted to less than a full range of light work, there were jobs that existed in significant numbers in the regional and national economies, of cleaner I and electronics assembler, that Petitioner could perform. (AR 21).
B. Analysis
1. Petitioner Credibility
Petitioner contends that the ALJ gave insufficient reasons for rejecting his testimony. In his opinion, the ALJ stated the claimant’s statements concerning the “intensity, persistence and limiting effects of these symptoms are not credible to the extent they are inconsistent with the above residual functional capacity assessment.” The ALJ further stated that the objective evidence established that Petitioner is capable of performing basic work activities. The ALJ remarked that Petitioner did not follow through with physical therapy as recommended by his treating physician, Dr. Dirks, because he could not afford it and that he only medicates his pain with over-the-counter medications every other day. The ALJ also noted that while the claimant described daily activities which are fairly limited, great weight was not given to this evidence because the “allegedly limited daily activities cannot be objectively verified with any reasonable degree of certainty” and because of the difficulty attributing “that degree of limitation to the claimant’s medical condition, as opposed to other reasons, in view of the relatively weak medical evidence . . .”  The ALJ further concluded:
The claimant’s statements on the function report are not entirely credible. He said he can perform his personal care slowly. He is able to prepare simple meals. He claims he is fairly limited in several areas as a result of paralysis. He claimed he cannot do any housework, he cannot drive, and he cannot handle money. He also stated that he is under doctor’s orders to not go outside. There is no evidence in the record of continued paralysis in the upper extremities. The treatment notes show the claimant’s strength in his upper extremities has continued to improve (at least 4/5 strength). Furthermore, there is no reference in the treatment record to any doctor directing the claimant to not go outside. The claimant testified he has problems gripping and grasping items with his hands; however, after the first surgery, it is noted to have improved (4/5 strength after first surgery). Furthermore, this testimony is not consistent with the claimant’s testimony that he is able to fish, which shows he is able to hold on to a fishing pole and reel in a fishing line, which requires an ability to grip and grasp items.
The claimant testified he has difficult reaching overhead, but there is no indication in the treatment notes of any limitations in this area. There are no range of motion tests and no significant signs of weakness. The claimant asserted he has problems with stairs; however, he also said he has several flights of stairs at home to climb and descend. This suggests the claimant is able to climb and descend stairs with little difficulty. The bulk of treatment notes do not support the claimant’s assertions regarding his limitations in walking and standing. It has been noted the claimant has no difficult with ambulation. Finally, the claimant stated he can only sit for no more than ½ hour; yet, the hearing lasted longer than ½ hour and the claimant showed no signs of needing to change positions.
(AR 19-20).
The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities.  The ALJ’s findings must be supported by specific, cogent reasons.  If a claimant produces objective medical evidence of an underlying impairment, an ALJ may not reject a claimant’s subjective complaints of pain based solely on lack of medical evidence.  Unless there is affirmative evidence of malingering, the ALJ must provide clear and convincing reasons for rejecting pain testimony. The reasons an ALJ gives for rejecting a claimant’s testimony must be supported by substantial evidence in the record.
In evaluating credibility, the ALJ may engage in ordinary techniques of credibility evaluation, including consideration of a claimant’s reputation for truthfulness and inconsistencies in claimant’s testimony, or between claimant’s testimony and conduct, as well as claimant’s daily activities, claimant’s work record and testimony from physicians and third parties concerning the nature, severity and effect of the symptoms of which claimant complains.  Also, the ALJ may consider: location, duration and frequency of symptoms; factors that precipitate and aggravate those symptoms; amount and side effects of medications; and treatment measures taken by claimant to alleviate those symptoms. See Soc. Sec. Ruling (SSR) 96-7p. Here, the ALJ focused on inconsistencies in claimant’s testimony as well as between his claimed limitations and the support for those limitations in the medical record. The ALJ noted that while Petitioner claimed to have great difficulty grasping and gripping many everyday items, he also testified that he would go fishing which would be inconsistent with the claimed limitations.1 Additionally, the ALJ remarked that although Petitioner stated he could not sit for longer than 20 to 30 minutes at a time, the hearing lasted longer than 30 minutes and he did not appear to need to switch positions. The ALJ also observed that Petitioner testified to extreme limitations in his upper extremities as well as with walking and standing, yet the medical evidence demonstrated improved strength (at least 4/5) in his upper extremities after his surgeries and indicated no problems with ambulation. While lack of medical evidence cannot be the sole reason for rejecting pain testimony, “medical evidence is still a relevant factor in determining the severity of the claimant’s pain and its disabling effects.”  The ALJ also focused on treatment measures taken by Petitioner, which he testified was to use over-the-counter pain medication every other day. Over-the-counter pain medication is an example of “evidence of `conservative treatment'” that “is sufficient to discount a claimant’s testimony regarding severity of an impairment.” 
Where, as here, there is substantial evidence in the record to support the ALJ’s credibility finding, the Court will not engage in second-guessing In other words, if the evidence can support either outcome, the Court may not substitute its judgment for that of the ALJ. The Court reviews the administrative record as a whole to determine whether substantial evidence supports the ALJ’s decision.  The issue is not whether the Court agrees with the ALJ’s credibility assessment, but whether the assessment is supported by the requisite findings and record evidence. Here, it is, and the Court will not substitute its own assessment for that of the ALJ.
2. Treating Physician’s Opinion
Petitioner argues that the ALJ improperly rejected the opinion of his treating physician, Dr. Dirks, by relying on the opinion of a non-examining physician.
Ninth Circuit case law distinguishes among the opinions of three types of physicians: (1) those who treat the claimant (treating physicians); (2) those who examine but do not treat the claimant (examining physicians); and (3) those who neither examine nor treat the claimant (nonexamining physicians).  Generally, more weight is accorded to the opinion of a treating source than to nontreating physicians.  In turn, an examining physician’s opinion is entitled to greater weight than the opinion of a nonexamining physician.  If the treating physician’s opinion is not contradicted by another doctor, it may be rejected only for “clear and convincing” reasons. If the treating doctor’s opinion is contradicted by another doctor, the Commissioner may not reject the treating physician’s opinion without providing “specific and legitimate reasons” supported by substantial evidence in the record for doing so. 
An ALJ is not required to accept an opinion of a treating physician if it is conclusory and not supported by clinical findings.  Additionally, an ALJ is not bound to a physician’s opinion of a petitioner’s physical condition or the ultimate issue of disability.  If the record as a whole does not support the physician’s opinion, the ALJ may reject that opinion.  Items in the record that may not support the physician’s opinion include clinical findings from examinations, conflicting medical opinions, conflicting physician’s treatment notes, and the claimant’s daily activities. 
The ALJ provides a detailed description of Petitioner’s medical records, which come from his treating surgeon, Dr. Dirks. On January 27, 2009, following Petitioner’s second surgery, Dr. Dirks stated that Petitioner was not released back to work and the issue should be reevaluated in three months.  On April 9, 2009, he opined that Petitioner was “disabled and unable to return to work at this stage.”  On November 3, 2009, the last treatment note from Dr. Dirks, he stated that he supported Petitioner in his quest for obtaining Social Security disability as he did “not believe he will be able to have gainful employment at this time.” (AR 304).
In regard to Dr. Dirks’ opinions as to disability, the ALJ gave his opinion little weight and stated:
Dr. Dirks provides no range of motion testing in the treatment notes. His treatment notes show the claimant’s condition has improved after both surgeries. Muscle strength testing shows the claimant has at least 4/5 strength in the upper extremities. There is no evidence of ongoing paralysis in the upper extremities. Although the doctor stated the claimant is `disabled,’ it is not clear that the doctor was familiar with the definition of `disability’ contained in the Social Security Act and regulations. The possibility always exists that a doctor may express an opinion in an effort to assist a patient with whom he or she sympathizes for one reason or another. Another reality which should be mentioned is that patients can be quite insistent and demanding in seeking supportive notes or reports from their physicians, who might provide such a note in order to satisfy their patient’s requests and avoid unnecessary doctor/patient tension. While it is difficult to confirm the presence of such motives, they are more likely in situations where the opinion in question departs substantially from the rest of the evidence of record, as in the current case.
While a treating physician’s opinion is entitled to great weight, the ALJ is not bound by his or her opinion on the ultimate issue of disability.  This is especially true if the opinion is conclusory and not supported by the clinical findings.  The ALJ does not discount the medical records from Dr. Dirks, instead he provides a thorough discussion of Petitioner’s medical history.  However, the ALJ found that Dr. Dirks’ opinion of disability departed “substantially” from the rest of the evidence in the record and conflicted with his own treatment notes and the clinical findings.  Under the Social Security regulations, the ALJ is not required to follow a treating physician’s opinion that a claimant is “disabled” or “unable to work.” 20 C.F.R. § 416.927(e)(1). Additionally, these opinions of treating physicians are not entitled to any special significance. Id. at § 416.927(e)(3). Lastly, while, as Petitioner contends, the ALJ did give significance to the Physical Residual Functional Capacity Assessment completed by a non-examining physician, this assessment was not used as a basis for rejecting Dr. Dirks’ opinion on disability. Instead, the ALJ provided specific and legitimate reasons for giving Dr. Dirks’ opinion regarding disability little weight.
3. Residual Functional Capacity Finding
Petitioner contends there is not substantial evidence in the record to support the ALJ’s finding of a medium residual functional capacity. A claimant’s residual functional capacity is the most he can do despite his limitations. 20 C.F.R. § 404.1545(a). An ALJ considers all relevant evidence in the record when making this determination. Id. The regulations define “medium work” as “lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds.” 20 C.F.R. § 416.967(c).
In finding that the Petitioner could perform the full range of medium work, the ALJ relied, in part, on the opinions of two non-examining state agency physicians who reviewed the medical record and opined that Petitioner could perform medium work. (AR 286-98, 299). Petitioner contends that the ALJ should not rely on these opinions because they were made without the November 3, 2009 treatment note of Dr. Dirks which stated that he “continued to show signs and symptoms of central cord syndrome” and that he “continues to exhibit poor walking ability and poor strength.” (AR 304). Although the ALJ gave “significant weight” to the assessment of the state agency physician, Dr. Dickey, this was not the only evidence he relied upon in forming his assessment. The ALJ also evaluated the medical evidence from Dr. Dirks, including this November 3, 2009 treatment note, and Petitioner’s own testimony.  See Batson v. Comm’r Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004) (finding the ALJ was not required to incorporate opinion evidence which was permissibly discounted). The ALJ commented on the November 3, 2009 treatment note and remarked that other treatment notes found “claimant’s strength was measured as at least 4/5 and it has been noted the claimant’s ambulation is good.” (AR 19). The ALJ has considered all the relevant evidence in making his residual functional capacity finding and it is supported by substantial evidence.
Although it was not raised by Petitioner, when evaluating the ALJ’s residual functional capacity finding, the Court sua sponte examined whether the ALJ should have further developed the record in this case. Under Ninth Circuit law, an ALJ has “an independent duty to fully and fairly develop the record and to assure that the claimant’s interests are considered.”  The ALJ must supplement the record if there is “ambiguous evidence” or the ALJ has found “the record is inadequate to allow for proper evaluation of the evidence.”  When reviewing this, the Court determined that the evidence was in conflict, rather than ambiguous and the ALJ’s duty to develop the record was not invoked. Even though this is a case in which the Court has some misgivings about the result and those misgivings may have caused the Court to decide the case differently, the ALJ is entitled to deference when the decision is supported by substantial evidence.  In other words, if the evidence can support either outcome, the Court may not substitute its judgment for that of the ALJ. 
4. Medical-Vocational Guideline 202.06
Petitioner contends that under Medical Vocational Guideline 202.06, he should be found disabled. Medical Vocational Guideline 202.06 directs a finding of disability where a claimant is limited to light work, is of advance age (55 and older), has a high school education and does not have transferrable skills. 20 C.F.R. Pt. 404, Subpt. P, App. 2, Table 2, Rule 202.06.
In his decision, after finding that Petitioner was capable of performing past relevant work, thus directing a finding of not disabled, the ALJ went on to state that even if claimant was “restricted to less than a full range of light work . . . the vocational expert testified [he] could perform the jobs of cleaner I and electronics assembler, jobs which exist in significant numbers in the regional and national economy.”
Petitioner is correct that under Ninth Circuit law, a vocational expert’s testimony cannot “supplant or override a disability conclusion dictated by the Guidelines.” The Commissioner contends that any error made by the ALJ in this regard is “harmless error.”
The Ninth Circuit has affirmed “under the rubric of harmless error where the mistake was nonprejudicial to the claimant or irrelevant to the ALJ’s ultimate disability conclusion.”  For example, in Matthews v. Shalala, the ALJ failed to include one of claimant’s limitations in his hypothetical to the vocational expert.  However, because the claimant had failed, at step four, to show that he could not return to his past work, the burden remained on him and the ALJ was not required to rely on the vocational expert’s testimony to show that the claimant could perform other kinds of work. Id. The court concluded: “The vocational expert’s testimony was thus useful, but not required . . . Any error would have been harmless.” Id.
Similarly, in this case, the ALJ concluded that Petitioner had the residual functional capacity to perform the full range of medium work (AR 16) and thus could perform his past relevant work.  The ALJ then found, alternatively, that even if Petitioner was limited to light work, significant jobs that he could perform existed in the national economy.  This was an unnecessary step that the ALJ was not required to perform having found Petitioner capable of performing past relevant work and not disabled at step four. Accordingly, if an error was made by the ALJ in not following the Medical-Vocational Guidelines, it was harmless.
IV. CONCLUSION
The ALJ is the fact-finder and is solely responsible for weighing and drawing inferences from facts and determining credibility. If the evidence is susceptible to more than one rational interpretation, one of which is the ALJ’s, a reviewing court may not substitute its interpretation for that of the ALJ.
The evidence upon which the ALJ relied can reasonably and rationally support his well-formed conclusions, despite the fact that such evidence may be susceptible to a different interpretation. Indeed, in this case, this Court might well have found differently if was to decide the case de novo. However, such a statement is drawn from a cold record, and it is not this Court’s role to alter the ALJ’s decision without some appropriate basis under the law for doing so, consistent with its role as a reviewing court only. Here, the ALJ’s decision as to Petitioner’s alleged disability is based on proper legal standards and supported by substantial evidence. Therefore, the Court concludes that the Commissioner’s determination that Petitioner is not disabled within the meaning of the Social Security Act is supported by substantial evidence in the record and is based upon an application of proper legal standards.
Accordingly, the Commissioner’s decision is affirmed.
V. ORDER
Based on the foregoing, Petitioner’s Petitioner for Review (Dkt. 1) is DENIED, the decision of the Commissioner is AFFIRMED, and this action is DISMISSED in its entirety, with prejudice.


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