Posts Tagged With: Michael J. Astrue

If Your Treating Physician Says You Are Disabled, The Social Security Judge MUST Find You Disabled.

Posted on March 21, 2012 by Judge London Steverson

KOSOWSKI v. ASTRUE

United States District Court, M.D. Florida, Jacksonville Division.

March 19, 2012.

Stacey Ayn Kosowski, Plaintiff, represented by L. Jack Gibney, Jr., Law Office of L. Jack Gibney.
Commissioner of Social Security, Defendant, represented by John F. Rudy, III, US Attorney’s Office – FLM.

 

 

OPINION AND ORDER
JAMES R. KLINDT, Magistrate Judge.
I. Status
Stacey Ayn Kosowksi (“Plaintiff”) is appealing the Commissioner of the Social Security Administration’s final decision denying her claims for disability insurance benefits (“DIB“) and supplemental security income (“SSI“). Her alleged inability to work stems from back injuries, nerve damage, chronic pain, and depression.  Plaintiff filed an application for DIB. Plaintiff alleges a disability onset date of October 1, 2005.
Plaintiff’s claims were denied initially,  and were denied upon reconsideration, An Administrative Law Judge (“ALJ”) held a hearing on November 21, 2008 regarding Plaintiff’s claims.  After the hearing, the ALJ issued a Decision dated March 30, 2009.  Plaintiff requested a review of the ALJ’s Decision,  and on November 17, 2010, the Appeals Council denied Plaintiff’s request for review,  making the ALJ’s written Decision the final decision of the Commissioner.
On January 7, 2011, Plaintiff commenced this action under 42 U.S.C. § 405(g) and § 1383(c)(3), by timely filing the Complaint (Doc. No. 1) seeking review of the Commissioner’s final decision. The available administrative remedies have been exhausted, and the case is properly before the Court.
Plaintiff raises one issue on appeal: whether the ALJ properly considered and gave appropriate weight to the opinion of Plaintiff’s treating physician, Tai Q. Nguyen, M.D. 
After reviewing the record and the parties’ respective memoranda, the undersigned finds the final decision of the Commissioner is due to be reversed and remanded for the reasons explained herein.
II. The ALJ’s Decision

When determining whether an individual is disabled, an ALJ must follow the five-step sequential inquiry set forth in the Code of Federal Regulations (“Regulations”), determining as appropriate whether the individual: 1) is currently employed; 2) has a severe impairment; 3) has an impairment that meets or medically equals one listed in the Regulations; 4) can perform past relevant work; and 5) retains the ability to perform any work in the national economy.
The claimant bears the burden of persuasion through step four and, at step five, the burden shifts to the Commissioner. 
Here, the ALJ performed the required five-step sequential inquiry.  At step one, the ALJ observed Plaintiff “has not engaged in substantial gainful activity since October 1, 2005, the alleged disability onset date.”  (emphasis and citation omitted). At step two, the ALJ found that Plaintiff suffers from “the following severe impairments: a lumbar spine disorder status post three surgeries, chronic pain disorder, and depression.”  (emphasis and citation omitted). At step three, the ALJ stated Plaintiff “does 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.” . The ALJ determined Plaintiff has the following residual functional capacity (“RFC”):
[Plaintiff can] perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except [Plaintiff] cannot engage in activities that involve climbing ladders, ropes, or scaffolds. [Plaintiff] can occasionally climb ramps or stairs, and occasionally engage in balancing, kneeling, crouching, crawling, and stooping. [Plaintiff] must avoid exposure to dangerous work hazards. [Plaintiff] is limited to routine, repetitive work tasks.
 At step four, the ALJ ascertained Plaintiff “is unable to perform any past relevant work.”  At step five, after “[c]onsidering [Plaintiff’s] age, education, work experience, and [RFC,]” the ALJ found “there are jobs that exist in significant numbers in the national economy that [Plaintiff] can perform.”   The ALJ concluded Plaintiff was not under a disability from October 1, 2005 through the date of the Decision.
This Court reviews the Commissioner’s final decision as to disability pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). Although no deference is given to the ALJ’s conclusions of law, findings of fact “are conclusive if . . . supported by `substantial evidence’ . . . .” 
“Substantial evidence is something `more than a mere scintilla, but less than a preponderance.'”
 The substantial evidence standard is met when there is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” 
It is not for this Court to re-weigh the evidence; rather, the entire record is reviewed to determine whether “the decision reached is reasonable and supported by substantial evidence.”
IV. Discussion

Plaintiff raises one issue before this Court. Plaintiff alleges the ALJ did not properly consider and give appropriate weight to the opinion of Plaintiff’s treating physician, Dr. Nguyen. Pl.’s Mem. at 4-7. Plaintiff contends the ALJ should have afforded Dr. Nguyen’s opinion great weight because “Dr. Nguyen is a neurosurgeon who has treated and examined [P]laintiff and has performed a prior surgery on [P]laintiff and is in the best position to evaluate [P]laintiff’s condition.” Id. at 5. Furthermore, Plaintiff asserts that “[t]here is no other treating physician who has actually examined Plaintiff and no doctor who has a longer relationship with her.” Id. at 6.
On October 25, 2006, Plaintiff sought treatment from Dr. Nguyen. Tr. at 288. Dr. Nguyen recorded Plaintiff’s chief complaints as follows: “bilateral upper gluteal pain, bilateral gluteal pain, and right lower extremity pain. . . . She also complain[ed] of numbness in the last 3 toes of her right foot.” Tr. at 288. Dr. Nguyen opined that Plaintiff had a possible recurrent disk herniation of L4-5 on her right side. Tr. at 288. Based on the severity of Plaintiff’s complaints, Dr. Nguyen “recommended an exploration and possible surgical decompression of the nerve root.” Tr. at 288. Plaintiff was scheduled for the operation. Tr. at 288.
On November 9, 2006, Dr. Nguyen performed a hemilaminotomy and diskectomy L4-5 on Plaintiff’s right side. Tr. at 297. After this procedure, Plaintiff’s “disks were satisfactorily excised,” “the nerve was found to be free from compression,” and “hemostasis was obtained.” Tr. at 297. Two days following this surgery, Plaintiff’s pain level was controlled, she was able to ambulate to the bathroom without difficulty, and she was discharged from the hospital.6 Tr. at 299-300.
On February 28, 2007, Dr. Nguyen saw Plaintiff for a follow-up appointment related to Plaintiff’s chronic back pain and urinary incontinence. Tr. at 290-91. Dr. Nguyen noted that Plaintiff still continued to complain of pain in her right leg.  Dr. Nguyen’s assessment of Plaintiff’s condition was that she “has a low back syndrome, and she is not considered to be a surgical candidate.”  Dr. Nguyen recommended Plaintiff seek treatment from a pain management clinic.
In October 2008, Dr. Nguyen noted that he had evaluated Plaintiff on March 12, 2008, and he made the following findings.  Dr. Nguyen opined Plaintiff could lift and/or carry less than ten pounds frequently, she could occasionally stand and/or walk for less than two hours in an eight-hour workday, and she could sit for less than six hours in an eight-hour workday.  Dr. Nguyen determined that Plaintiff had physical limitations that prevented her from pushing and/or pulling with her arms and legs.  Plaintiff could never climb, balance, kneel, crouch, or stoop. Tr. at 442. Lastly, Plaintiff was limited in reaching in all directions. Tr. at 443. Dr. Nguyen concluded that Plaintiff had been suffering from these limitations since July 1995. Tr. at 445.
The Regulations instruct ALJs how to weigh the medical opinions of treating physicians properly. See 20 C.F.R. § 404.1527(d). Because treating physicians “are likely to be the medical professionals most able to provide a detailed, longitudinal picture of [a claimant’s] medical impairment(s),” a treating physician’s medical opinion is to be afforded controlling weight if it is “well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence” in the record. 20 C.F.R. § 404.1527(d)(2). When a treating physician’s medical opinion is not due controlling weight, the ALJ must determine the appropriate weight it should be given by considering factors such as the length of treatment, the frequency of examination, the nature and extent of the treatment relationship, as well as the supportability of the opinion, its consistency with the other evidence, and the specialization of the physician. 20 C.F.R. § 404.1527(d).
If an ALJ concludes the medical opinion of a treating physician should be given less than substantial or considerable weight, he or she must clearly articulate reasons showing “good cause” for discounting it.  Good cause exists when (1) the opinion is not bolstered by the evidence; (2) the evidence supports a contrary finding; or (3) the opinion is conclusory or inconsistent with the treating physician’s own medical records. The ALJ must “state with particularity the weight he [or she] gave the different medical opinions and the reasons therefor.” 
Here, the ALJ reviewed Plaintiff’s medical history as contained in the record. The ALJ assigned “little weight” to Dr. Nguyen’s opinion because “a less than sedentary [RFC] is too restrictive in light of the medical evidence.”  The ALJ did not articulate any other reasoning or explanation as to why “little weight” was afforded to Dr. Nguyen’s opinion.
On its face, the reason given by the ALJ for affording Dr. Nguyen’s opinion little weight may be considered a “good cause” reason; however, the ALJ did not explain her reasoning with any specificity or provide any evidentiary support for her reason.. The ALJ’s lack of explanation to support the decision to give little weight to Dr. Nguyen’s opinion impedes judicial review and therefore warrants reversal.
Defendant contends that the “ALJ properly considered an opinion from Plaintiff’s treating physician” and then Defendant goes on to review the medical evidence of record and provide reasons why the ALJ’s Decision was proper.  Although Defendant’s contentions are potentially convincing, if accepted as true, the Court “cannot uphold a decision by an administrative agency . . . if, while there is enough evidence in the record to support the decision, the reasons given by the trier of fact do not build an accurate and logical bridge between the evidence and the result, or the reasons are not included in the decision. Given these standards, this Court cannot substitute the contentions in Defendant’s Memorandum for the actual findings, or lack thereof, made by the ALJ.
V. Conclusion
After a thorough review of the record, the undersigned cannot find that substantial evidence supports the Commissioner’s final decision because the ALJ did not provide sufficient reasons for discrediting the opinion of Dr. Nguyen, Plaintiff’s treating physician. In accordance with the foregoing, it is
ORDERED:
1. The Clerk of Court is directed to enter judgment pursuant to sentence four of 42 U.S.C. § 405(g) and § 1383(c)(3), REVERSING the Commissioner’s final decision and REMANDING this matter with the following instructions:
(a) Reevaluate Dr. Nguyen’s opinion and state with particularity the weight afforded to Dr. Nguyen’s opinion; if the opinion is discounted, adequate reasons showing good cause for discounting it shall be provided and shall be supported by substantial evidence.
(b) Take such other action as may be necessary to resolve these claims properly.
2. The Clerk is further directed to close the file.
3. If benefits are awarded on remand, Plaintiff’s counsel shall have thirty (30) days from receiving notice of the amount of past due benefits to seek the Court’s approval of attorney’s fees pursuant to 42 U.S.C. § 406(b). See Bergen v. Comm’r Soc. Sec., 454 F.3d 1273 (11th Cir. 2006).
DONE AND ORDERED.
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Social Security Judges Will Not Grant Benefits to Former Drug Users, No Matter What Treating Physician Rule Says.

Posted on March 21, 2012 by Judge London Steverson

 

BLACK v. ASTRUE

 

 

KRISTINA R. BLACK  v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration.

 

No. 11-35379.

 

United States Court of Appeals, Ninth Circuit.

 

  Filed March 19, 2012.

Before: PAEZ and MURGUIA, Circuit Judges, and TUCKER, District Judge.

 

MEMORANDUM*

Plaintiff-Appellant Kristina Black appeals the district court’s judgment affirming the Commissioner of Social Security‘s denial of her applications for Child’s Insurance Benefits and Supplemental Security Income benefits under the Social Security Act. Black alleged disability due to depressive disorder severe with psychotic features, polysubstance abuse, obesity, chronic back pain, and anxiety disorder.

We review de novo the district court’s order affirming the Commissioner’s denial of benefits to ensure that the Commissioner’s decision was supported by substantial evidence and a correct application of the law.

 

The Administrative Law Judge (“ALJ”) applied the five-step sequential evaluation process to determine if Black is disabled. 20 C.F.R. § 404.1520; 20 C.F.R. § 416.920.

At STEP ONE, the ALJ determined that Black had not been engaged in substantial gainful activity (SGA) since September 1, 2006, the alleged disability onset date.

At STEP TWO, the ALJ found that Black had two severe impairments: (1) major depressive disorder, chronic, severe with psychotic features, and (2) polysubstance abuse.

At STEP THREE, the ALJ determined that Black did not have an impairment that meets the criteria of an impairment listed at 20 C.F.R. Part 404, Subpart P, Appendix 1. The ALJ then found that Black had the residual functional capacity to perform a full range of work but with non-exertional limitations.

At STEP FOUR, the ALJ concluded that Black is capable of performing her past relevant work (PRW) as a dishwasher, and therefore is not disabled.

At STEP FIVE, alternatively, the ALJ concluded that Black is not disabled because there are other jobs that exist in significant numbers in the economy that she can perform, including work as a night cleaner.

 

The ALJ erred at STEP TWO by not considering whether Black’s anxiety disorder is a severe impairment. Treating physician Dr. Woyna diagnosed Black as suffering from anxiety disorders and Black alleged that she was disabled in part due to anxiety disorder.

By disregarding the anxiety disorder diagnosis, the ALJ failed to offer the “specific and legitimate reasons” required to reject a treating doctor’s conclusions. Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995). Substantial evidence does not support the ALJ’s conclusion that the anxiety disorder is not a severe impairment in the absence of any mention of the disorder.

We cannot determine whether the error was harmless because the ALJ did not provide a statement of reasons for rejecting evidence relevant to Black’s residual functional capacity, and

THEREFORE we do not know whether the ALJ’s omission was “inconsequential to the ultimate nondisability determination.” Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006).

We therefore reverse and remand to the district court with instructions to remand to the ALJ to consider all of the evidence. We do not reach Black’s other claims of error.

REVERSED and REMANDED.

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High-Paid Social Security Disability Judges Cost Taxpayers $2 Billion a Year In Salaries

Posted on July 13, 2011 by Judge London Steverson

Social Security Administration Commissioner Michael Astrue said judges (Administrative Law Judges, ALJs) in his agency 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/)

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Social Security Administration Keeps Claimants In The Dark.

Posted on November 15, 2010 by Judge London Steverson

(Social Security Commissioner Michael Astrue)

Social Security Administration Keeps Claimants In The Dark.

Today’s unprecedented economic crisis is bringing into sharp focus Social Security’s role as the backbone of the country’s retirement security, as well as the irresponsibility of former President George W. Bush’s policies in regard to this critical program.

Part of the Bush legacy that Astrue has continued are personnel and labor relations policies that hobble agency staff and undermine SSA’s ability to fulfill its duty to the American public. For example, Commissioner Astrue has implemented a policy prohibiting SSA employees from advising SSA claimants regarding their benefit election options. Because benefit election options, such as month of election, impact the eventual amount of benefits received, this prohibition deprives SSA claimants of advice and information that is important to their claims.

 Commissioner Astrue has also disadvantaged unrepresented claimants in disability hearings by not providing sufficient staff to explain new electronic processes to them, such as their electronic disability file, and has contributed to the disability backlog by prematurely implementing electronic processes, such as the “iclaims” program, before they have been fully developed. 

Commissioner Astrue created national hearing centers, apart from hearing offices, in circumvention of SSA’s obligations to the AALJ/IFPTE. This has resulted in one of the highest and costliest supervisory/managerial ratios in SSA. In establishing national hearing centers, where only video hearings can be conducted, Commissioner Astrue has deprived claimants of due process  by unduly encouraging them to waive in-person hearings in favor of video hearings. Commissioner Astrue has also contributed to the backlog of  disability cases by creating a work environment for SSA employees that is hostile to efficiency and effectiveness.  

 Commissioner Astrue has demonstrated a callous disregard for the Social Security Act by encouraging undue haste in making judicial decisions in disability cases and discouraging quality, thereby adversely affecting the American taxpayer because each disability case is valued at $250,000. Moreover, he has eliminated proof of age and proof of citizenship, which will likely result in an increase of fraud and beneficiary overpayments. In addition, he has reduced the processing of integrity workloads, such as redeterminations and Continuing Disability Reviews. This has resulted in billions of dollars of overpayments.

 At the core of Bush’s approach was the appointment of high-level agency officials committed to his anti-Social Security strategy.

 (AFL-CIO statement March 03, 2009)

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Violence Against Social Security Judges Increasing.

Posted on November 15, 2010 by Judge London Steverson
       The PowerPoint released by Erskine Bowles and Alan Simpson, the co-chairs of the National Commission on Fiscal Responsibility and Reform (“The Deficit Commission”), said we should “Reform Social Security for its own sake, not for deficit reduction.”
Social Security has nothing to do with the deficit. Not now, not ever. However it has everything to do with political theater and public disinformation.
SocialSecurity is a political football, and now we are beginning the political Super Bowl Season.
Critics of Social Security have frequently made alarming claims about the future of the system to support calls for “reform”. Opportunists are posturing and trying to humanize the Social Security Administration (SSA). In order to do that the first group they sieze upon to spot light are the Administrative Law Judges(ALJ) at SSA, the 1300-1400 judges who decide disability cases.So now the SSA and its programs are at center stage of the public political debate. An avalanche of news articles have been triggered. One Associated Pressarticle about violence against SSA ALJs became the most frequently Email-ed article on Yahoo within 48 hours of publication two days ago. However, the article can be very misleading without some insider background information.The public is being manipulated with these articles. These articles are a diversion. They seek to make the judges appear as victims, while it is the American public who are being victimized. The judges are gatekeepers for the Social Security Trust Fund. To understand how and why read “socialNsecurity, Confessions of a Social Security Judge” at http://www.judgelondonsteverson.com.An ABA Journal article date May 18, 2012  found at  http://www.abajournal.com/news/article/defendant_told_others_of_urge_to_kill_judge_and_wait_with_a_gun_plea_docume/ told of a chilling incident in Tennessee. (I attended a Robert Crossley Bar Review Course in Knoxville, TN in 1977.)

A Tennessee man armed with a 9 mm semi-automatic pistol waited outside the offices of an administrative Law Judge (ALJ) last February, but the judge never emerged, according to a federal document supporting a plea in the case.

The man Roy Kenneth Wade Jr., was angry because the judge, K. Dickson Grissom, had denied Wade’s application for Social Security benefits, the Knoxville News reports. Wade was hospitalized after telling mental health professionals about the incident, as well as his continued desire to kill the judge, according to the document filed in Knoxville federal court by Assistant U.S. Attorney Melissa Kirby.

After his release from the hospital, Wade told federal agents he didn’t know whether he will kill Grissom, but if he did, he would save a round to shoot himself.

Wade confessed this week to a charge of threatening to murder a federal judge and will be sentenced later this year, the story says.

WASHINGTON – Judges who hear Social Security disability cases are facing a growing number of violent threats from claimants angry over being denied benefits or frustrated at lengthy delays in processing claims.

An AP article “Violence Against Social Security Judges” could have been written 10 or even 20 years ago. Why now? The incidents cited are over 10 years old. The incidents of violence have not increased, only the threats. The threats are commonplace and go with the job.

The number one complain in disability cases in back pain. The second most common complain is a mental inpairment. Many of these claimants are seriously mentally impaired; some are certifiably insane. They talk out of their heads; and , they make threats. The ALJ is the first and sometimes only embodiment of the SSA and the Federal Governmant, so they make threats against them. But they have no means or opportunity to carry out the threats. So, by and large the threats are harmless.

Some judges will not hold a hearing without an armed Federal Protective Service officer in the hearing room. Not me. I would postpone the hearing first. I only had to do that once in my entire career as an ALJ.

Judges in Illinois were carrying guns to work in their brief cases 15 and 20 years ago. They probably still are today. The ones that I knew about, had permits to carry a fire arm. The state and the city fire arm licensing authorities must have been satisfied that there is and was a valid threat to their safety.

I have been threated. Attorneys representing claimants have been threated in my courtroom. I have heard things like “if I loose my benefits, I will kill you”. That was said by a Mexican gang member with tear drops tatoos on his face and neck to an attorney in my court room.

I never let them know where I lived. I did not give out my home address. After work, I was always cautious and vigilant in the parking lot. We had to park in the same lot as the claimants. They knew our cars.

I never went straight home after work. I drove around and made sure no one was following me.

I lived less than one mile from the Downey Hearing Office. I was prepared to meet violence at the office but not at home. I was a military veteran, so danger and threats went with the job. However, my family was not to be put at risk. If I was going to be shot, it would be at the office, not at home. If a vengeful claimant was going to blow up something it was going to be the office, not my home. An Oklahoma City type of attack was acceptable, but not violence at my private residence where my wife and 3 little children lived.

The AP reporter acknowledged that while no judges were harmed this year, there have been past incidents. The first example cited was that of a female judge in the Los Angeles Office of Disability Adjudication and Review (ODAR). She was hit over the head with a chair during a hearing. That is not exactly accurate, but I am familiar with the incident. The ALJ made some fundamental mistakes. The incident was avoidable. The judge deviated too far from standard procedure.

The ALJ in question had been transferred from the Long Beach Office of Hearings and Appeals (OHA) to the Downtown Los Angeles ODAR. She conducted the hearing in a formal manner. She wore a black robe; she sat at the judge’s bench; she remained distant and removed from the claimant who was seated at the claimant’s table which was below and separated from the judge’s bench. Aside from the judge and the court reporter there were only two other people in the hearing room. Those were the claimant and her adult daughter. the claimant was not represented by an attorney and no attorney was present.

The claimant was alleging a mental impairment. She claimed that she could not engage in work on a consistent basis because her mental impairment prevented her from maintaining persistence, concentration, and pace. The ALJ was not convinced and something about her questions and her demeanor must have relayed that message to the claimant and her daughter. The judge was going to deny her claim. The conversational exchanges became heated. So, the ALJ closed the hearing and left the hearing room. Then she made a fundamental error.

The judge left the room, removed her robe, came back to the hearing room, and sat down at the table with the claimant and her daughter. It is not clear why she felt this little friendly chat was necessary. She had already as much as told the claimant that she was not going to win her case. She was not going to receive disability benefits. The conversation became heated. The claimant’s daughter became excited and irate. The judge jumped up and tried to leave the hearing room and the daughter picked up a chair and threw it at the judge. This was predictable. The judge lowered the barrier and put herself on the same level with the claimant.

This is not the kind of violence that most judges are afraid of. Most judges would not have put themselves in this kind of a risky situation. This was practically an invitation to precipitate an incident. Moreover, usually the cases are so tightly scheduled, one after another, that most judges would not have had time to have a nice little touchie-feelie chat with a mentally deranged claimant who did not have a lawyer present to represent her.

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

WASHINGTON – Judges who hear Social Security disability cases are facing a growing number of violent threats from claimants angry over being denied benefits or frustrated at lengthy delays in processing claims.

There were at least 80 threats to kill or harm administrative law judges or staff over the past year — an 18 percent increase over the previous reporting period, according to data collected by the agency.

The data was released to the Association of Administrative Law Judges and made available to The Associated Press.

One claimant in Albuquerque, N.M., called his congressman’s office to say he was going to “take his guns and shoot employees” in the Social Security hearing office. In Eugene, Ore., a man who was denied benefits said he is “ready to join the Taliban and hurt some people.” Another claimant denied benefits told a judge in Greenville, S.C., that he was a sniper in the military and “would go take care of the problem.”

“I’m not sure the number is as significant as the kind of threats being made,” said Randall Frye, a judge based in Charlotte, N.C., and the president of the judges’ union. “There seem to be more threats of serious bodily harm, not only to the judge but to the judge’s family.”

Fifty of the incidents came between March and August, including that of a Pittsburgh claimant who threatened to kill herself outside the hearing office or fly a plane into the building like a disgruntled tax protester did earlier this year at the Internal Revenue Service building in Austin, Texas.

A Senate subcommittee is expected to hear testimony on Monday at a field hearing in Akron, Ohio, about the rising number of threats, as well as the status of the massive backlog in applications for disability benefits, which are available to people who can’t work because of medical problems.

Nearly 2 million people are waiting to find out if they qualify for benefits, with many having to wait more than two years to see their first payment.

Judges say some claimants become desperate after years of fighting for money to help make ends meet.

“To many of them, we’re their last best hope for getting relief in the form of income and medical benefits,” said Judge Mark Brown, a vice president of the judge’s union and an administrative law judge hearing cases in St. Louis.

While no judges were harmed this year, there have been past incidents: A judge in Los Angeles was hit over the head with a chair during a hearing and a judge in Newburgh, N.Y., was punched by a claimant when he showed up for work.

In January, a gunman possibly upset about a reduction in his Social Security benefits killed a security guard during a furious gunbattle at a Nevada federal courthouse.

About 1,400 administrative law judges handle appeals of Social Security disability claims at about 150 offices across the country. Many are in leased office space rather than government buildings.

Brown said the agency provides a single private security guard for each office building that houses judges. Frye said he has sought more security and a review of the policy that keeps guards out of hearing rooms. He said Social Security Commissioner Michael J. Astrue has promised to look into it.

Social Security Administration spokeswoman Trish Nicasio said the agency continually evaluates the level and effectiveness of office security and makes changes as needed.

“We are taking appropriate steps to protect our employees and visitors while still providing the level of face-to-face service the public expects and deserves,” Nicasio said.

Visitors and their belongings are screened before entering hearing offices and hearings room, she said, and reception desks are equipped with duress alarms to notify the guard immediately of any disturbance.

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