Posts Tagged With: Supplemental Security Income

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)

Advertisements
Categories: socialNsecurity | Tags: , , , , , , , , | Leave a comment

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:

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

Video Hearings At Social Security Are A Denial Of Due Process Rights

Social Security Disability Video Hearings Increased In 2013

Social Security Disability Video Hearings Increase In 2013, Allsup Reports

More people than ever before attended a video hearing in 2013 while seeking Social Security disability benefits.

The number of video hearings increased to 179,308 in fiscal year 2013, more than double the 86,320 video hearings in FY 2009, according to data released by the Social Security Administration (SSA) in its Annual Performance Plan for Fiscal Year 2015. This was an increase of nearly 17 percent from 153,592 video hearings the previous year (FY 2012).

Video hearings are one of the methods SSA uses to reduce the backlog of SSDI claims.

The use of video-conferencing technology to exclude the Claimant from being physically present in the same Hearing Room as the ALJ and other witnesses violates the Claimant’s due process rights. 

A Claimant who can only observe witnesses on a television screen will not be able to observe

the demeanor  of the witnesses and properly ascertain the accuracy and reliability of their proffered evidence.

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

The primary  reason, among others, for the use of video hearings is to reduce travel costs and conserve the time of its ALJs and hearing support staff without diminishing the Claimant’s ability to effectively participate in the hearing.”

Social Security (SSA) recently changed its rules regarding videoteleconferencing (VTC), and is now sending notices regarding VTC at an early stage of the hearing level. The new notice requires a decision within 30 days whether or not to object to a video hearing. Previously, the objection to VTC was not made until the time a hearing was actually scheduled.
By moving forward the date by which an objection can be made, the issue of whether to accept a VTC is much easier. You may not know the identity of your judge or when your hearing will be scheduled. This should, make it much easier to “Just say No” to a video hearing.
Social Security loves to use VTC. It is an effective way to reduce a Backlog. There are national hearing centers where administrative law judges (ALJ) hear cases all day by video from remote locations.
SSA expected this change in policy would lead to fewer objections to video hearings. It might have the opposite effect. Logically, if claimants have lawyers who give good advice, this might lead to more refusals to VTC hearings.
Claimants’ representatives are acquainted with the ALJs in their area. They know what the ALJs are looking for in order to decide a case. They can read their body language at an in-person hearing.
A smart attorney would not risk the possibility of his cases being heard by a distant unknown ALJ.
There is another issue that attorneys must consider. ALJs from remote parts of the USA have different and sometimes strange ways of looking at and sizing-up claimants. Also, claimants in certain regions of the USA have different and unique behavioral habits. These peculiarities will effect how an ALJ looks at and judges the claimant and the evidence. Many times it is like a roll of the dice to accept a VTC Hearing. It is safer to “Just Say NO!”.
Every case will be different. It would not be smart to adopt a blanket policy. Every case should be evaluated on its own merit, but the first impulse should always be to refuse to accept a VTC Hearing. You have little to gain and much to loose.

A Claimant could argue that the SSA ALJ must give the Claimant an “opportunity to appear,” as provided in the U S Constitution which requires the defendant and the judge to be physically present in the same courtroom.

 Most reasonable people would agree with this contention, referring to the meaning of appear and to the traditional understanding of a Claimant’s appearance before a court empowered to deprive him of his property, that is to say, his Disability Benefits.

It is noted that both the Webster’s Dictionary and the Black’s Law Dictionary define appear and

appearance so as to suggest that an appearance can only occur if the person comes into the physical presence of the judge. To appear means to be physically present.

The form and substantive quality of a hearing is altered when either the defendant or

the judge is absent from the hearing room, even if he or she is participating by video-conference.

SSDI is a federal insurance program that provides monthly income to people under full retirement age (65-67) with a severe disability lasting at least 12 months or a terminal condition.To apply for SSDI benefits, someone must be unable to work.

SSDI is funded by FICA payroll taxes paid by workers and their employers.

Individuals reach the hearing level after their initial application has been denied two times by the State Disability Determination Service (DDS).

Most hearings are still held in person before administrative law judges (ALJs). But Social Security is increasing its ability to perform hearings through video conferencing, including using video at National Hearing Centers. The SSA has five of these centers in Albuquerque, N.M., Baltimore, Chicago, Falls Church, Va., and St. Louis. (Statistics provided by ALLSUP)

A claimant will give up important due process rights if he or she opts for a video hearing.

During a video hearing, the ALJ, claimant and representative interact with each other using videoconferencing equipment, very similar to a large television. The judge usually remains at his location and connects by video with the claimant at his or her location.

Video conferencing can be more convenient for the claimant, if he or she lives in a remote area. And it saves travel time for the judge.

Consider the following information when preparing for an SSDI hearing.

  •     How should I dress? A hearing is not a time to dress casually. A business suit isnt required, but jeans, shorts and flip flops arent a good idea, even for a video hearing.
  •     What happens when I get there? The process typically is the same for hearings, video or in-person. The judge leads the hearing, and he or she asks questions of the claimant and the representative.
  •     Whats different with a video hearing? It can be important for someone to provide technical support, to make sure the video and sound quality are good, and to ensure the sound recording is working properly. The sound recording is kept for the records.
  •     Who else is there? There also can be vocational experts, medical experts and other witnesses at the hearing to provide testimony.
  •     How does the hearing end? The entire hearing may last about an hour as the ALJ evaluates the information being provided by the person who is seeking SSDI benefits and other testimony. When the judge has all the information he or she needs, the hearing is ended. Its rare that the judge announces the decision (to award or approve) at the conclusion of the hearing.

Some people become very frustrated at video hearings.

  • MADISON, Wisconsin — A Wisconsin Rapids woman will spend three years on probation for threatening to kill a federal administrative law judge (ALJ).

    Fifty-one-year-old Norma Prince was sentenced Thursday March 6, 2014. Prince pleaded guilty in December.

    Prosecutors say the incident happened Jan. 31, 2013, when Prince appeared at a Social Security disability benefits hearing in Wausau.

    Administrative Law Judge Thomas Sanzi was presiding over the hearing by video teleconference from Madison. Prosecutors say Prince became upset and threatened to shoot Judge Sanzi and cut off his head. The hearing was halted and Prince was escorted from the courtroom.

    Prince’s husband told a federal agent that his wife had bought two .22-caliber rifles about a month before the disability hearing.

    At sentencing, U.S. District Judge Lynn Adelman said Prince’s mental health issues can be controlled through medication and supervision.

      A video-conference hearing is one  at which all parties were physically present except for the judge and the court reporter, who participate by video-conference from a remote location.

    SSDI claimants should challenge the judge’s decision to conduct a hearing by

    video-conference.

    I present here the question of first impression for SSA SSDI appeals: “whether the

    use of video-conferencing to conduct a hearing violates  the Fifth Amendment’s Due Process Clause.

    Although the SSA and no SSA ALJ has previously confronted this exact

    issue, the question of the constitutional and statutory validity of the use

    of videoconferencing technology by the Federal Administrative Agencies is far from

    novel. As technology has advanced rapidly, the SSA has been faced with a surge of new, unforeseen issues that it has had to resolve without legislative direction.

    The invention of video-conferencing appeared to be a perfect solution to the SSA; so, it  has encouraged the use of video-conferencing systems in the Hearing Rooms.

    Courts and government agencies have implemented the use of

    video-conferencing technology in post-conviction proceedings, including

    probation, parole, and supervised release revocation hearings.

    The courts of appeals are beginning to strike down the practice, but only on

    statutory grounds. This trend appears to rest on the general principle

    of judicial restraint that requires courts to avoid constitutional questions

    if statutory analysis is sufficient.

    However, in the absence of legislation or a decision from the United

    States Supreme Court, there remains the potential that SSA ALJ Hearings and other federal courts,  could find that video-conferencing violate a Claimant’s Due Process rights.

    Therefore, the due process rights undermined by the use of video-conferencing technology

    deserve the judiciary’s attention, particularly the right to be present at your Hearing, and to effective assistance of counsel and the right to confront adverse witnesses, such as, SSA’s Consultative Medical Examiners (ME) and Vocational Experts (VE).

     Videoconferencing at Rule 43 Criminal Proceedings

    In the 1990s and early 2000s, circuit courts first considered whether

    the use of videoconferencing at a criminal proceeding governed by Rule 43

    satisfies the statutory requirement that a defendant be “present.”

    Since that time, the Fourth, Fifth, Ninth, and Tenth Circuits have held

    that the use of videoconferencing at Rule 43 proceedings violates a

    defendant’s statutory rights. For example, the Tenth Circuit confronted this issue in 2002 in

    United States v. Torres-Palma. In Torres-Palma, the defendant appeared by videoconference at his

    sentencing, which took place in a different state than where the judge presided. In determining that Rule 43 required a defendant to be physically present at sentencing, the court concluded that the content and the plain reading of the text of Rule 43, along with the Webster’s Dictionary and Black’s Law Dictionary definitions of presence and present, mandated that physical presence

    was required.

     Fifth Circuit noted that the rights protected by Rule 43 include not only due process rights and the common law right to be present, but also the right of a defendant to meet face-to-face with witnesses appearing before the trier of fact, as governed by the Confrontation Clause.

    After the Tenth Circuit’s decision and the decisions of its sister circuits, it was clear that, even though the use of videoconferencing could increase productivity and save money, the technology was not appropriate for Rule 43 proceedings because it violated both common law and statutory rights to be present.

    The reason for the use of video hearings is to reduce travel costs and conserve the time of its ALJs and hearing support staff without diminishing the Claimant’s ability to effectively participate in the

    hearing.”

    Violates his statutory  and constitutional rights when it denied his request for an in-person

    hearing. Specifically,  the use of videoconferencing violated his due process rights and 18 U.S.C. § 4208(e), which requires that a prisoner “be allowed to appear and testify on his own behalf.

    A Claimant could argue that the SSA ALJ must give the Claimant an “opportunity to appear,” as provided in the U S Constitution which requires the defendant and the judge to be physically present in the same courtroom.

     Most reasonable people would agree with this contention, referring to the meaning of appear and to the traditional understanding of a Claimant’s appearance before a court

    empowered to deprive him of his property, that is to say, his Disability Benefits.

    It is noted that both the Webster’s Dictionary and the Black’s Law Dictionary define appear and

    appearance so as to suggest that an appearance can only occur if the person comes into the physical presence of the judge. To appear means to be physically present.

    The form and substantive quality of a hearing is altered when either the defendant or

    the judge is absent from the hearing room, even if he or she is participating by video-conference.

    The Seventh Circuit of Appeals referred to the Supreme Court’s decision in

    Escoe v. Zerbst, in which the Supreme Court determined that a lower

    court’s decision to revoke a defendant’s probation without a hearing

    violated the requirement that he be “brought before the court.” Although Escoe

    predated video-conferencing technology, and the Internet for that matter, the case provided the traditional legal understanding of a person’s appearance. In Escoe, the Court held that

    “‘the end and aim of an appearance before the court’ under the statute was to ‘enable an accused [parolee] to explain away the accusation,’ and this required ‘bringing the [parolee]

    into the presence of his judge.’” Additionally, the Seventh Circuit referenced the statutory language of other Federal Rules of Criminal Procedure that explicitly allow for the use of videoconferencing.

    The court reasoned that, since video-conferencing is permitted only with stated exceptions in the rules, the use of the technology “is the exception to the rule, not the default rule itself,” and that Rule 32.1’s “opportunity to appear,” therefore, excludes appearance by video-conference.

    During its interpretation of the opportunity to appear, the court also examined the statutory rights owed to a defendant at a revocation hearing. Rule 32.1 provides, in pertinent part, that:

    The person is entitled to: . . . (C) an opportunity to appear, present

    evidence, and question any adverse witness . . . ; [and] (D) notice of the

    person’s right to retain counsel or to request that counsel be appointed if

    the person cannot obtain counsel . . . .

    After determining that the opportunity to appear requires a parolee to come into the physical presence of the judge, the court furthered its statutory analysis by noting that this right is not isolated, but instead exists in conjunction with the right to “present evidence,” to “question

    any adverse witness,” and to “make a statement and present any evidence in mitigation. Appearance in court is “the means by which the petitioner effectuates the other rights conferred” by Rule 32.1.

    The conjunctive force of a defendant’s opportunity to appear is particularly important to the defendant’s right to “make a statement and present any information in mitigation” because “appearing before the court allows the [parolee] to plead his case personally to the [deciding]

    judge.”

    This right, known as the right of allocution, “ensures that the defendant has the opportunity to ‘personally address the court’ before punishment is imposed.” Without the physical meeting, the court reasoned, the judge could not experience the impressions of any personal confrontation wherein he or she attempts to assess the parolee’s credibility or to evaluate the defendant’s true moral fiber. Consequently, without the personal, physical interaction between a judge and a parolee, the force of the parolee’s other rights guaranteed by Rule 32.1 is diminished.

    Finally, after determining that the judge’s participation by videoconferencing in Thompson’s revocation hearing violated Rule 32.1, the court vacated Thompson’s term of re-imprisonment and

    remanded. The court resolved the second issue, whether video-conferencing violated Thompson’s due process rights, in a one-sentence footnote: “Because we hold that the judge’s participation by

    video-conference violated Rule 32.1, we need not address Thompson’s argument that holding the hearing by video-conference violated the Fifth Amendment’s Due Process Clause.”

    The Court then turned its analysis to the nature of the process that is due a parolee at a revocation hearing, wherein it laid out the minimum requirements of due process. Accordingly, a parolee must have an opportunity to be heard and to show either that he or she did not violate the conditions of release or, alternatively, that there are mitigating circumstances.

    Further, the Court held that the minimum requirements of due process include, in pertinent part, the “(c) opportunity to be heard in person and to present witnesses and documentary evidence; [and] (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation).

    Defense counsel suffers a multitude of communication challenges when not in the presence of the judge or the courtroom. Anne Bowen Poulin, a law professor at the Villanova University School of Law, stressed in her discussion of the use of videoconferencing technology that “[t]he attorney will be unable to gauge the emotional interactions and mood of the courtroom as effectively to determine when and how to intervene on the client’s behalf.”She also examined various studies

    that suggest that alliances form among those who are in the same physical location—alliances against those who appear via video-conference.In the case where neither the parolee nor counsel is physically present at the revocation hearing, the effectiveness of counsel is even more imperiled. The court in Thompson, although faced with the opposite situation in which the judge appeared by video-conference, foresaw this consequence and determined that “[t]he important point is that the

    form and substantive quality of the hearing is altered when a key participant is absent from the hearing room, even if he is participating by virtue of a cable or satellite link.” The physical separation of a parolee from counsel inevitably takes its toll on the effectiveness of the counsel, and this effect is most strongly felt by the communication between them. Some courts have tried to curb this problem by providing telephone lines that allow for privileged communication.

    However, this practice still cannot replace the quality of the attorney–client relationship created by in-person interaction.

    According to Poulin, the human interactions that foster the relationship are muted by the technology, which detracts from the defendant’s experience. Likewise, counsel cannot gauge the defendant’s mental and emotional state, and neither party can use nonverbal cues to communicate with each other during a proceeding, both of which are necessary to effective communication. Despite the surplus of communication problems caused by the use of

    video-conferencing technology, Poulin believes that these adversities will not rise to the level of ineffective assistance of counsel in the eyes of the courts.

    However, effective communication is so integral to the role of counsel, and counsel’s ability to effectively assist a client, that it is likely to be a key consideration when a court determines whether the right to effective assistance of counsel has been violated by the use of videoconferencing technology at a revocation hearing. In fact, at least one court has recognized that the use of technology to physically exclude a parolee from the courtroom, as well as from counsel, violates the right to counsel because of the detrimental effect it has on communication.

    In Schiffer v. State, the District Court of Appeal of Florida heard an appeal from a revocation hearing and a subsequent sentencing hearing in which the parolee participated via

    video/audio arrangement. The court found that, because the parolee had no means by which to access and to communicate privately with his counsel, his right to counsel was “obliterated.” The court held that “[w]e can imagine no more fettered and ineffective consultation and communication between an accused and his lawyer than to do so by television in front of a crowded courtroom with the prosecutor and judge able to hear the exchange.

    The use of videoconferencing technology in revocation hearings also violates the parolee’s due process right to confront adverse witnesses.

    As with the right to effective assistance of counsel, the parolee’s due process right “to be heard in person”works in conjunction with the due process right to confront adverse witnesses. Without the parolee’s physical presence, there is no effective right to confront adverse witnesses that satisfies the minimum requirements of due process. The Ninth Circuit addressed this issue in

    White v. White when it considered whether a bar to the presence of an adverse witness at a

    parole revocation hearing violated due process.

    The court held that “[w]here the facts are contested, the presence of adverse witnesses, absent good cause for their nonappearance, is necessary to enable the parole board to make accurate

    findings.” Therefore, without good cause, the appearance or the presence of adverse witnesses is necessary.

    A parolee has a strong interest in the right to confront adverse witnesses at a revocation hearing, a proceeding at which the parolee’s liberty is at stake. The parolee, who will either want to argue innocence or prove factors in mitigation, cannot effectively exercise a right of confrontation when appearing via vide-oconference, away from the physical presence of the adverse witnesses. Like in Wilkinson, a parolee who can observe witnesses only on screen will not be able to observe

    their demeanor and properly ascertain the accuracy and reliability of their proffered evidence, evidence that is often determinative of the parolee’s fate.

    Therefore, given the strength of a Claimant’s due process right of confrontation, and the insufficiency, or even the complete absence of good cause by the government, a Claimant should be able to successfully demonstrate that the use of vide-oconferencing technology

    to exclude the Claimant from being physically present in the same Hearing Room as the ALJ and other witnesses violates the Claimant’s due process right to confront adverse witnesses.

Categories: Social Security Cases | Tags: , , , , , | 3 Comments

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

Social Security Disability Hearing Backlog Growing Again

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

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

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

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

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

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

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

 

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

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

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

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

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

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

You Need Help When Filing An SSDI Appeal

Things To Consider When Applying for SSDI benefits.

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

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

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

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

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

 

Find more information about SSDI disability appeal see http://www.amazon.com/socialNsecurity-Confessions-Social-Security-Judge/dp/1449569757

 

(Statistics Source: ALLSUP) ABOUT ALLSUP :

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

 

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

Judges Stripped Of Judicial Independnce At SSA

SSA increases oversight of judges in disability determinations

The Social Security Administration (SSA) recently announced plans to increase its oversight of judges (ALJs) in the disability determination process.
February 25, 2014 /24-7PressRelease/ — In an effort to improve consistency in the disability determination process (SSDI), the Social Security Administration (SSA) recently announced plans to step up its oversight of the administrative law judges (ALJ) who are responsible for awarding or denying disability benefits. The Social Security Disability Insurance program provides financial benefits to people who are unable to work because of a mental or physical disability. 
The program has increased substantially in the years since the U.S. economy took a downturn in 2008, and there are now approximately 11 million people receiving disability benefits nationwide. New job descriptions for judges To expand its oversight of the eligibility determination process, the SSA is rewriting the job descriptions of approximately 1,500 judges, who in the past have been given broad discretion over the outcome of eligibility hearings. In recent years, these eligibility hearings have yielded notoriously unpredictable results.
According to a 2011 report by the Wall Street Journal, an applicant’s likelihood of being awarded disability benefits can vary dramatically depending on the judge; while a handful of judges award benefits in nine cases out of ten, others deny benefits nearly as often.  
The new job descriptions will include language stating that the judges are subject to supervision and will remove the words “complete individual independence,” the WSJ reported. It is hoped that the changes will increase accountability among the judges and allow the SSA to take corrective measures when judges award or deny benefits inappropriately.
 Disability benefit determination 
Before becoming eligible to receive SSDI benefits, an applicant must first establish that he or she meets the SSA’s requirements for being considered “disabled.” To do so, the applicant must demonstrate that each of the following is true: – The individual cannot work because of a medical condition. – The condition has lasted or is expected to last for a year or more, or is expected to result in death.
 While the process of applying for SSDI benefits may seem relatively straightforward, in practice it can be cumbersome, time consuming and often frustrating. Not only is it necessary to submit medical records and other evidence of disability, but in most cases applicants are also required to attend an eligibility hearing before an administrative law judge.
Benefits often available after initial denial
Overall, first-time disability applicants are denied benefits as much as, according to some estimates, but a majority of denied applicants who pursue an appeal are eventually awarded benefits.
 In many cases, working with an experienced Social Security Disability lawyer can significantly improve an applicant’s chances of being awarded benefits, whether it is a first-time application or an appeal.
(Article provided by The Berkley Law Firm Visit us at www.berkleylaw.net — Press release service.)
Categories: Social Security Judges | Tags: , , , , , , , , , | Leave a comment

socialNsecurity From Alpha to Omega

CHAPTER 2

c22f8-courtgavel-758498

    Cases From Start To Finish

  

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

Here is a CIRCUIT COURT CASE AS AN EXAMPLE:

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

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

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

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

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

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

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

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

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

 (Standard of Review In The Ninth Circuit.)

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

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

(Standard of Review In The Sixth Circuit)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

CONCLUSION

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

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

BONSANTO v. ASTRUE

LUCY BONSANTO, Plaintiff,

v.

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

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

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

September 28, 2010.

OPINION AND ORDER

DOUGLAS N. FRAZIER, Magistrate Judge.

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

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

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

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

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

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

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

II. Review of Facts and Conclusions of Law

A. Background Facts:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


B. SPECIFIC ISSUES

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

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

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

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

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

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

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

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

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

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

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

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

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

C. CONCLUSION

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

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

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

DONE AND ENTERED.

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

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

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


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

Categories: socialNsecurity | Tags: , , , , , , | Leave a comment

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

 

 

 

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

 

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

 

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

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

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

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

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

                      (AALJ President Randy Frye and Marilyn Zahm)

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

 

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

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

 

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

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

 

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

 

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

 

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

 

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

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

American States With The Most People On Disability

Modern Social Security card.

Modern Social Security card. (Photo credit: Wikipedia)

English: A collection of pictograms. Three of ...

English: A collection of pictograms. Three of them used by the United States National Park Service. A package containing those three and all NPS symbols is available at the Open Icon Library (Photo credit: Wikipedia)

The number of Americans receiving Social Security Disability Insurance (SSDI) more-than doubled over the past two decades, from 5.2 million to 11.7 million by the end of 2011.

The number of residents receiving disability insurance from the

Social Security Administration (SSA) varies from state to state. In West

Virginia, close to one in every 10 people aged 18 to 64 was receiving

SSDI benefits from the federal government, more than three times the

rate in states like Utah and Alaska.

The proportion of eligible workers applying for disability benefits

also has doubled in the past 10 years, according to the SSA. Two main

reasons are driving the increase, explains The National Association of

Social Security Claimants’ Representatives. First, baby boomers are

entering years in which they are more prone to disability. Second, women

who began to work in greater numbers in the 1970s and 1980s are also

now eligible for disability through Social Security for the first time.

However, changing demographics only partially explain the increase.

Tad DeHaven, budget analyst at the Cato Institute, a libertarian think

tank, explained that the recession played a major role in the growth in

disability claims. “When you see unemployment rates rising, you see

disability moving with it,” DeHaven noted.

In fact, states with the highest disability claims tend to have the

highest poverty rates and the fewest jobs offering competitive wages.

Seven of the 10 states with the most residents receiving disability have

among the highest poverty rates in the country. The number of jobs in

these states in manufacturing and retail, which tend to pay modest

wages, are above the national average. Meanwhile, jobs in finance and professional occupations are scarce.

While it is true that disability claims rise when the economy is in

trouble, disability claims also skew the unemployment rate. The vast

majority of disability claimants do not work and are therefore not

counted as part of the labor force, which the government uses to

calculate unemployment. Of the 10 states with highest proportion of 18

to 64 year olds on Social Security disability, seven have among the

lowest labor force participation rates in the country. Unemployment

rates in these states, six of which are already above the national

average, would be even higher if those on disability were counted.

In principle, the reason Americans apply for disability is because

their health prevents them from working. A review of a recent

Gallup-Healthways survey shows that nearly these states with the highest

rates of disability are in the top 10 for serious conditions, including

heart attacks, diabetes, hypertension and recurring knee, leg and back

pain. West Virginia, the state with the highest disability rate, had

either the highest or the second-highest rate in the country for all of

these conditions.

Residents in these states find it hard to get a job that will pay

much more than disability with their work experience, education and

health condition, explained Gary Burtless, economist and senior fellow

at the Brookings Institution. “In states like Alabama and West

Virginia,” Burtless said, “lots of the workers are going to be in

occupations where the next job they obtain — if they do stick it out and

work through the pain and the disability — is one that is going to pay

considerably less than the last job that they held.”

To determine the 10 states with the most residents getting disability

benefits, 24/7 Wall St. relied on figures published by the Social

Security Administration in its Annual Statistical Report on the Social

Security Disability Insurance Program for December 2011, the most recent

available data. We only considered the number of claimants and average

payment from the SSA. Unlike SSA, Supplemental Security Income, another

federal disability program, provides financial support to low-income

residents, children and senior citizens, regardless of work history.

Statistics on labor force participation and average annual unemployment

rates were provided by the Bureau of Labor Statistics for 2011. Figures

for the percentage of residents suffering from a specific disease or

condition are from the Gallup-Healthways Well Being Index. Education,

income and poverty statistics are from the U.S. Census Bureau.

These are the states with the most Americans on disability.

10. Michigan

> Pct. receiving disability benefits: 6.0%

> Pct. with recurring neck and back pain: 32.3% (12th highest)

> 2011 labor force participation: 60.3% (7th lowest)

> 2011 unemployment: 10.4% (tied for 6th highest)

At the end of 2011, disabled workers in Michigan received in total $390 million a month from SSDI,

more than all but five other states. The state not only had a

relatively high number of disabled workers, but also paid them more than

most states. On average, disabled workers in Michigan received $1,166

per month in December 2011 from SSDI, more than in all but three other

states. Nearly 23% of these recipients received more than $1,600 per

month from the program, more than anywhere in the country except New

Jersey. Between 2006 and 2011, Michigan’s labor force participation rate

declined by five percentage points, from 65.3% to just 60.3% of the

population.

9. Missouri

> Pct. receiving disability benefits: 6.1%

> Pct. with recurring neck and back pain: 30.5% (24th lowest)

> 2011 labor force participation rate: 65.0% (25th highest)

> 2011 unemployment rate: 8.4% (22nd highest)

Missouri had an average unemployment rate of 8.4% in 2011, lower than

the nationwide rate of 8.9%. Many jobless adults were actively seeking a

job, a fact that qualifies them received Medicaid or Temporary

Assistance for Needy Families (TANF). Still, Missouri was contemplating a

welfare transfer program that would move Medicaid and TANF recipients–

who must be be employed or taking steps towards employment — onto

federal disability programs. To assist in implementing the plan,

Missouri would hire

Public Consulting Group, which touts its ability to improve the rate at

which states’ residents are approved for disability benefits. Opponents

of the plan say the initiative would trap families in poverty.

8. South Carolina

> Pct. of working age population with benefits: 6.3%

> Pct. with recurring neck and back pain: 30.1% (20th lowest)

> 2011 labor force participation rate: 60.0% (6th lowest)

> 2011 unemployment rate: 10.4% (tied for 6th highest)

South Carolina had one of the nation’s highest poverty rates in 2011,

when nearly 19% of the population lived below the poverty line. It also

had one of the nation’s lowest median annual household incomes, at just

over $42,000. South Carolina not only had one of the nation’s highest

average unemployment rates in 2011, but also one of the lowest labor

force participation rate (unemployed workers actively seeking a job).

Meanwhile, few other states had a larger percentage of workers receiving

SSDI benefits, which does not require recipients to actively look for a

job. State residents were among the most likely to attribute their disability

to diseases affecting the musculoskeletal and circulatory systems, such

as back pain. South Carolina residents were among the most likely to

have high cholesterol or blood pressure, or to have been diagnosed with

diabetes in 2012.

7. Tennessee

> Pct. of working age population with benefits: 6.5%

> Pct. with recurring neck and back pain: 32.4% (11th highest)

> 2011 labor force participation rate: 62.7% (16th lowest)

> 2011 unemployment rate: 9.3% (15th highest)

Tennessee had more than 260,000 Social Security disability

beneficiaries between the ages of 18 and 64 as of the end of 2011. As a

result, disabled workers in the state received a total of $261.5

million in December 2011 from SSDI. Beneficiaries in Tennessee were

among the most likely in the nation to receive benefits due to diseases

of the circulatory system. According to a Gallup-Healthways survey,

state residents were among the most likely in the nation to have

diabetes or high cholesterol or to have had a heart attack in 2012.

6. Maine

> Pct. of working age population with benefits: 7.4%

> Pct. with recurring neck and back pain: 33.0% (10th highest)

> 2011 labor force participation rate: 65.2% (24th highest)

> 2011 unemployment rate: 7.7% (22nd lowest)

Although a large percentage of Maine residents received SSDI benefits

in December 2011, the typical payment was limited. The monthly disability benefit

in Maine was just $1,030 on average, the lowest in the nation. Just

11.5% of those with benefits received at least $1,600, the lowest

proportion in the nation and well below the 17.2% nationwide that

December. More than 43% of residents who received disability at the end

of 2011 were diagnosed as disabled due to a mental disorder, one of the

highest in the nation and well above the 35.8% average for all areas.

5. Mississippi

> Pct. of working age population with benefits: 7.7%

> Pct. with recurring neck and back pain: 30.3% (23rd lowest)

> 2011 labor force participation rate: 59.6% (4th lowest)

> 2011 unemployment rate: 10.5% (4th highest)

Mississippi had the highest poverty rate in 2011 with 22.6% of

residents living below the poverty line. Additionally, the state’s

median annual household income that year was the lowest in the nation at

slightly less than $37,000. Many residents could not find a job even if

they were actively looking. In 2011, Mississippi’s average unemployment

rate was the nation’s fourth highest. Additionally, a mere 59.6% of the

population participated in the workforce as of 2011, the fourth lowest

percentage of all states. Potentially related to the state’s high levels

of poverty, as well as obesity, 11.3% of SSDI beneficiaries suffered

from a circulatory system disease in December 2011. This was the highest

of any state, and well above the 7.7% of beneficiaries nationally.

Also Read: Workers Taking the Most Sick Days

4. Kentucky

> Pct. of working age population with benefits: 8.1%

> Pct. with recurring neck and back pain: 34.8% (5th highest)

> 2011 labor force participation rate: 61.5% (10th lowest)

> 2011 unemployment rate: 9.5% (12th highest)

More than 19% of Kentucky’s population lived in poverty in 2011, a

higher percentage than all but four states. Many people in Kentucky may

not have the means to get well-paying work. Just 83.1% of people have at

least a high school diploma, the sixth lowest percentage of all states.

Meanwhile, just 21.1% of adults have at least a bachelor’s degree, the

fifth lowest percentage of all states. As of 2011, just 61.5% of

Kentuckians were considered to be in the labor force, among the lowest

rates in the nation. In a well-publicized case, a Kentucky judge, David

Daugherty, was accused in a civil suit filed in February of improperly

approving Social Security benefits in order to help local attorney Eric

Conn, arguably the most prominent disability lawyer in the region,

receive millions of dollars from the federal government for handling these cases.

3. Alabama

> Pct. of working age population with benefits: 8.1%

> Pct. with recurring neck and back pain: 34.6% (6th highest)

> 2011 labor force participation rate: 58.5% (2nd lowest)

> 2011 unemployment rate: 8.7% (19th highest)

Alabama was one of the nation’s poorest states as of 2011, with a

median annual income of just $41,415. Additionally, educational

attainment in the state was limited, with just 82.7% of all residents

holding a high school diploma and just 22.3% a college

degree in 2011. That year, the state’s average unemployment rate was

8.7%, slightly lower than the U.S. average rate of 8.9% for the year.

However, just 58.5% of the population participated in the labor force as

of 2011, lower than all states except for West Virginia. In December

2011, SSDI recipients in Alabama were far more likely to receive

payments due to diseases of the circulatory system or the

musculoskeletal system than recipients in the large majority of other

states. Alabamians were among the most likely Americans surveyed in 2012

to state they had experienced a heart attack or were diabetic.

2. Arkansas

> Pct. of working age population with benefits: 8.2%

> Pct. with recurring neck and back pain: 36.1% (2nd highest)

> 2011 labor force participation rate: 60.4% (8th lowest)

> 2011 unemployment rate: 7.9% (24th lowest)

In 2011, the median annual income

in Arkansas was just $38,758, the third lowest of all states in the

United States. Arkansas is also among the least educated states in the

country. Workers with limited education and who are out of work

generally have a harder time getting back to work. For instance, just

20.3% of Arkansas residents had at least a bachelor’s degree, lower than

all but two other states. An estimated 31.6% of SSDI recipients in

Arkansas had musculoskeletal system disease in December 2011, more than

any other state except for Alabama. Meanwhile, more than 9% of

recipients had diseases involving the circulatory system, higher than

all but six other states.

1. West Virginia

> Pct. of working age population with benefits: 9.0%

> Pct. with recurring neck and back pain: 39.0% (the highest)

> 2011 labor force participation rate: 54.1% (the lowest)

> 2011 unemployment rate: 7.8% (23rd lowest)

No state had a higher percentage of working age people receiving SSDI

benefits than West Virginia. In addition, the benefits received from by

the federal government were more generous compared to most states. The

average monthly benefit of more than $1,140 in 2011 was the 10th highest

of all states. Almost 21% of recipients received monthly benefits of at

least $1,600, a higher percentage than all but three states. Like most

states on this list, West Virginia is among the less-educated states in

the country. Just 18.5% of the adult population had a bachelor’s degree,

the lowest percentage of all states. Also, few residents in the state

had jobs. Just 54.1% of residents were considered part of the labor

force in 2011, by far the lowest percentage of any state in the nation.

Categories: Social Security Benefits | Tags: , , , , , , | 3 Comments

Changes To Social Security In 2013.

Modern Social Security card.

Modern Social Security card. (Photo credit: Wikipedia)

 

 

Social Security recipients will get slightly bigger checks in 2013. The Social Security Administration announced several ways the program will be changed in the coming year. Here are a few Social Security changes workers and retirees can expect in 2013:

Bigger monthly payments.

Social Security payments will increase by 1.7 percent in 2013. That’s considerably less than the 3.6 percent cost of living adjustment (COLA) retirees received in 2012. Social Security payments are adjusted each year to reflect inflation as measured by the Consumer Price Index (CPI) for Urban Wage Earners and Clerical Workers. Previous inflation adjustments have ranged from zero in 2010 and 2011 to 14.3 percent in 1980. The average Social Security check is expected to increase by $21 as a result of the change from $1,240 before the COLA to $1,261 after. Couples will see their benefit payments grow from an average of $2,014 to $2,048.

Payroll tax cut scheduled to expire.

Workers will pay 6.2 percent of their income into the Social Security system in 2013, up from 4.2 percent in 2012. The temporary payroll tax cut expires at the end of December 2012 under current law.

Higher Social Security tax cap.

The maximum amount of earnings subject to Social Security taxes will be $113,700 in 2013, up from $110,100 in 2012. Approximately 10 million people will pay higher taxes as a result of the increase in the taxable maximum.

Increased earnings limit.

Retirees who work and collect Social Security benefits at the same time will be able to earn $480 more next year before any portion of their Social Security payment will be withheld. Social Security recipients who are younger than their full retirement age (66 for those born between 1943 and 1954) can earn up to $15,120 in 2013, after which $1 of every $2 earned will be temporarily withheld from their Social Security payments. For retirees who turn 66 in 2013, the limit will be $40,080, after which $1 of every $3 earned will be withheld. Once you turn your full retirement age you can earn any amount without penalty and collect Social Security benefits at the same time. At your full retirement age your monthly payments will also be adjusted to reflect any benefits that were withheld and your continued earnings.

Maximum possible benefit grows.

The maximum possible Social Security benefit for a worker who begins collecting benefits at their full retirement age will be $2,533 in 2013, up from $2,513 per month in 2012.

Paper checks will end.

The U.S. Treasury will stop mailing paper checks to Social Security beneficiaries on March 1, 2013. All federal benefit recipients must then receive their payments via direct deposit to a bank or credit union account or loaded onto a Direct Express Debit MasterCard. Retirees who do not choose an electronic payment option by March 1 will receive their payments loaded onto a pre-paid debit card. Most people already receive their benefit payments electronically, and new Social Security recipients have been required to choose an electronic payment option since 2011.

 

 

More than 56 million Social Security recipients will see their monthly payments go up by 1.7 percent next year.

The increase, which starts in January, is tied to a measure of inflation released Tuesday. It shows that inflation has been relatively low over the past year, despite the recent surge in gas prices, resulting in one of the smallest increases in Social Security payments since automatic adjustments were adopted in 1975.

Social Security payments for retired workers average $1,237 a month, or about $14,800 a year. A 1.7 percent increase will amount to about $21 a month, or $252 a year, on average.

Social Security recipients received a 3.6 percent increase in benefits this year after getting none the previous two years.

About 8 million people who receive Supplemental Security Income will also receive the cost-of-living adjustment, or COLA, meaning the announcement will affect about 1 in 5 U.S. residents.

Social Security also provides benefits to millions of disabled workers, spouses, widows, widowers and children.

“The annual COLA is critically important to the financial security of the (56) million Americans receiving Social Security benefits today,” said Nancy LeaMond, AARP’s executive vice president. “Amid rising costs for food, utilities and health care and continued economic uncertainty, the COLA helps millions of older Americans maintain their standard of living, keeping many out of poverty.”

The amount of wages subjected to Social Security taxes is going up, too. Social Security is supported by a 12.4 percent tax on wages up to $110,100. That threshold will increase to $113,700 next year, resulting in higher taxes for nearly 10 million workers and their employers, according to the Social Security Administration.

Half the tax is paid by workers and the other half is paid by employers. Congress and President Barack Obama reduced the share paid by workers from 6.2 percent to 4.2 percent for 2011 and 2012. The temporary cut, however, is due to expire at the end of the year.

Some of next year’s COLA could be wiped out by higher Medicare premiums, which are deducted from Social Security payments. The Medicare Part B premium, which covers doctor visits, is expected to rise by about $7 per month for 2013, according to government projections.

The premium is currently $99.90 a month for most seniors. Medicare is expected to announce the premium for 2013 in the coming weeks.

“If seniors are getting a low COLA, much of their increase will go to pay off their Medicare Part B premium,” said Mary Johnson, a policy analyst at The Senior Citizens League.

By law, the increase in benefits is based on the Consumer Price Index for Urban Wage Earners and Clerical Workers, or CPI-W, a broad measure of consumer prices generated by the Bureau of Labor Statistics. It measures price changes for food, housing, clothing, transportation, energy, medical care, recreation and education.

Over the past year, housing costs have gone up 1.4 percent but home energy costs have dropped by 3.8 percent, according to the CPI-W. Medical costs, which tend to hit seniors harder than younger adults, have increased by 4.4 percent.

Gasoline prices have climbed by 6.8 percent, but much of that increase happened in the past month, so it is not fully reflected in the COLA for Social Security.

To calculate the COLA, the Social Security Administration compares the average price index for July, August and September with the price index for the same three months in the previous year. The price index for September — the final piece of the puzzle — was released Tuesday.

If consumer prices increase from year to year, Social Security recipients automatically get higher payments, starting the following January. If prices drop, the payments stay the same, as they did in 2010 and 2011.

Since 1975, the annual COLA has averaged 4.2 percent. Only five times has it been below 2 percent, including the two times it was zero. Before 1975, it took an act of Congress to increase Social Security payments.

Most older Americans rely on Social Security for a majority of their incomes, according to the Social Security Administration. Over the past decade, the COLA has helped increase incomes for seniors, even as incomes have dropped for younger workers.

From 2001 to 2011, the median income for all U.S. households fell by 6.6 percent, when inflation was taken into account, according to census data. But the median income for households headed by someone 65 or older rose by 13 percent.

___

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

Social Security Judges Are “Paying-Down” The Back Log.

Seal of the United States Social Security Admi...

Seal of the United States Social Security Administration. It appears on Social Security cards. (Photo credit: Wikipedia)

The below Atlanta Journal-Constitution article of 13 Sept 2012 reminds one of the police chief’s statement in the movie ‘Casablanca’. “Frankly, Rick, I am surprised to find there is gambling in this club. Are those my winnings?”

Report: Social Security lax on disability claims

WASHINGTON —Social Security is so overwhelmed by disability claims that some officials are awarding benefits without adequately reviewing applications, potentially adding to the program’s financial problems as it edges closer to the brink of insolvency, congressional investigators say in a new report.

In more than a quarter of the 300 cases reviewed by congressional staff, decisions to award benefits “failed to properly address insufficient, contradictory or incomplete evidence.” In many cases, officials approved disability benefits without citing adequate medical evidence or without explaining the medical basis for the decision, according to the report by the Republican staff of the Senate Permanent Subcommittee on Investigations.

In some cases, it appeared that administrative law judges (ALJ) struggling to reduce backlogs didn’t take the time to review all the evidence, the report said. The judges are expected to rule on at least 500 cases a year, with one judge deciding an average of 1,800 cases a year for three straight years, the report said.

“The administrative law judges are not looking at the cases because the pressure from Social Security is to get the cases out,” said Sen. Tom Coburn of Oklahoma, the top Republican on the subcommittee. “I think you could flip a coin for anybody that came before the Social Security commission for disability and get it right just as often as the (judges) do.”

Social Security has been working for years to reduce a huge backlog of disability claims.

“We share the subcommittee’s concern that a small number of judges have failed our expectations with regard to a balanced application of the law, proper documentation, proper hearings and proper judicial conduct,” said Social Security spokesman Mark Hinkle. “We have undertaken a vigorous set of quality initiatives since the time most of these cases were filed about five years ago and data indicates that we have made substantial progress.”

Hinkle added, “We recognize the need for further improvement and are working hard toward that goal.”

At a subcommittee hearing Thursday, Chief Administrative Law Judge Debra Bice said the Social Security Administration has raised hiring standards for judges in the past several years. She said the agency doesn’t hesitate to hold judges accountable, where the law permits. But, Bice said, the law limits the agency’s authority over judges to ensure that they are impartial in deciding cases.

Disability claims typically increase in a bad economy because many people who worked despite their disabilities get laid off and apply for benefits. The recent recession was no exception, with a flood of applications straining the disability program’s already troubled finances.

Without congressional action, Social Security’s disability trust fund will run out of money in 2016, leaving the program unable to pay full benefits, according to the trustees who oversee the program. The trustees have urged Congress to shore up the disability system by reallocating money from the retirement program, just as lawmakers did in 1994. That fix, however, would further weaken the retirement system, which has its own long-term financial problems.

About 11 million people receive disability benefits from Social Security, an increase of more than 23 percent over the past five years. Benefits average a little less than $1,000 a month.

About 8.2 million people receive Supplemental Security Income, a disability program for poor people who don’t have substantial work histories. SSI benefits average a little more than $500 a month.

Coburn said he called for the investigation after he learned that a man he had hired to cut down trees in the yard of his home was also collecting Social Security disability. Coburn said he wanted to learn how widespread cheating was in the system, though the report doesn’t determine whether undeserving people are getting benefits. Instead, the report is limited to whether officials followed proper procedures.

The subcommittee’s staff asked the Social Security Administration to randomly select 100 cases apiece from counties in three states — Virginia, Alabama and Oklahoma. The cases were limited to those in which benefits were awarded.

The investigation was done by both Republican and Democratic staff members. However, subcommittee Chairman Sen. Carl Levin, D-Mich., did not sign off on the final report because he disagreed with some of its recommendations.

The report acknowledged that the findings may not be representative of the entire country. However, it said, “The same types of issues affected decisions across all three counties, suggesting they may be a factor elsewhere in the nation.”

(By STEPHEN OHLEMACHER, AP)

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

Blog at WordPress.com.