Government tries to clean up disability program
(By Hoppy Kercheval in Hoppy’s Commentary | December 30, 2013)
(NOTE: the views expressed here are those of Hoppy Kercheval and his alone. If you want some accurate information about the Social Security Disability Determination Process, you would be wise to read socialNsecurity, the Confessions of a Social Security Judge. Available on Amazon.com. See http://www.amazon.com/socialNsecurity-Confessions-Social-Security-Judge/dp/1449569757 )
The federal government may finally be getting a handle on the runaway Social Security Disability Insurance Program. The Wall Street Journal reports that the Social Security Administration is “tightening its grip on 1,500 administrative law judges to ensure that disability benefits are awarded consistently and to reign in fraud in the program.”
SSDI payments have risen dramatically in recent years. A combination of the economic downtown driving more unemployed workers to the program and liberal awarding of benefits by some judges has raised SSDI rolls 20 percent in the last six years to 12 million people, with an annual budget of $135 billion.
At this rate, the disability program will have spent all its reserves by 2016, forcing either an increase in payroll taxes or a cut in benefits.
The Journal reports that the administrative law judges (ALJ) will no longer have “complete individual independence.” Instead, they will be subject to supervision and management from the Social Security Administration (SSA).
The Association of Administrative Law Judges (AALJ) , the union representing the judges says it fears that will open the process to political interference, but that’s a straw man. Many of these disability judges need someone looking over their shoulder.
The poster boy for waste, fraud and abuse in SSDI is ALJ D.B. Daugherty of Huntington. As a Social Security administrative law judge, Daugherty awarded benefits in virtually every case… thousands of them. He worked closely with attorney Attorney Eric Conn, who advertised heavily in West Virginia and Kentucky, looking for potential clients.
According to the Journal, Daugherty once told a colleague, “Some of these judges act like it’s their own damn money we’re giving away.” Daugherty resigned after the Journal first reported the story in 2011.
During the Great Depression, when Congress was first considering a federal insurance program for the disabled (the law didn’t pass until almost 20 years later), a Social Security Advisory Council actuary warned of costs beyond “anything that can be forecast.”
The fear was that well-intentioned assistance for any person with impairments of mind or body that would keep him from being gainfully employed for their rest of his life would devolve into a version of unemployment.
That warning has proven prophetic as this country’s Social Security Disability Insurance (SSDI) program has spun out of control and is now on course to run out of money by 2016.
Sunday night, CBS 60 Minutes aired a segment entitled “Disability USA,” which probed the abuse of SSDI. Steve Kroft reported that SSDI rolls have risen 20 percent just in the last six years to 12 million people, with a budget of $135 billion.
West Virginia, despite a small population, is a big contributor to the SSDI rolls. The AP reports that “West Virginia leads the nation in the percentage of adults receiving government assistance for disabilities.”
A big reason for the surge in SSDI is that people who have had their claims denied are hiring law firms that specialize in winning appeals.
According to 60 Minutes, “Last year, the Social Security Administration paid a billion dollars to claimants’ lawyers out of its cash-strapped disability trust fund. The biggest chunk–$70 million—went to Binder & Binder, the largest disability firm in the country.”
Jenna Fliszar, a lawyer who used to work for Binder & Binder and represent clients from West Virginia and other states, told CBS, “I call it a legal factory because that’s all it is. They have figured out the system and they’ve made it into a huge national firm that makes millions of dollars a year on Social Security Disability.”
In 2011, the Wall Street Journal’s Damian Paletta reported on one Huntington-based disability judge who nearly always sided with the claimant. Judge David B. “D.B.” Daugherty awarded benefits in all but four of 1,284 cases during one fiscal year. The national average is 60 percent approval.
A report by the Committee on Homeland Security and Government Affairs estimates that Daugherty awarded more than $2.5 billion in benefits in the last 7 years of his career.
The Journal reported that Daugherty worked closely with lawyer Eric Conn, who advertises heavily in southern West Virginia and eastern Kentucky, looking for potential clients. Daugherty resigned after the Journal’s reports. Conn, who continues a thriving practice in SSDI cases, was evasive in a brief interview with 60 Minutes about his relationship with the former judge.
The abuse of the SSDI system has caught the attention of the Senate Committee on Government Affairs. It held a hearing Monday and issued a report finding “a raft of improper practices by the Conn law firm to obtain disability benefits, inappropriate collusion between Mr. Conn and a Social Security Administrative Law Judge (Daugherty), and inept agency oversight which enabled the misconduct to continue for years.”
The Committee report says Daugherty’s bank records show $96,000 in cash deposits from 2003 to 2011, for which Daugherty refused to explain the origin or source of the funds.
As one of the SSDI administrative judges said, “If the American public knew what was going on in our system, half would be outraged and the other half would apply for benefits.”
Frankly, it’s predictable that Americans hit by hard economic times are tempted to latch on to any government help they can, especially when there is an alliance of lawyers, doctors and judges willing to shepherd them through the system.
In doing so, however, they are squandering taxpayer dollars and bankrupting a legitimate program.
Meanwhile, earlier this year federal authorities arrested 75 people in Puerto Rico on charges of defrauding SSDI out of millions of dollars. A former Social Security employee teamed with complicit doctors to falsely diagnose individuals as mentally incapable of working.
But the problem is not just the outliers like Daugherty and the Puerto Rican scam.
As the Journal reports, there is widespread disparity in how judge’s rule. “Dozens of judges awarded benefits in 90 percent of their cases, while others were much less likely to find someone unable to find work, denying benefits in more than 80 percent of their cases, data showed.”
SSDI is an essential part of the country’s safety net. Those who are impaired, either in mind or body, and cannot work are entitled by law to support. However, it’s important to remember that SSDI is not another option for the unemployed, nor should it be an easy target for scammers.
Politicians like to say they can save taxpayer dollars by tightening up on waste, fraud and abuse–it’s easier than proposing real budget cuts–but in the case of SSDI, they’re right about the profligate misspending.
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.