Wednesday, August 30, 2017

More Social Security Administration Judges Go To Jail


Former Social Security judge, 81, gets prison time, must repay more than $94M


(Above, Former SSA ALJ David Black Daugherty)
A former administrative law judge who took payments in more than 3,100 disability cases involving a now-fugitive lawyer was sentenced to four years in prison and ordered to repay more than $94 million on Friday, August 25, 2017.
David Black Daugherty, 81, of Myrtle Beach, South Carolina, had admitted taking more than $609,000 cash in the scheme involving lawyer Eric Conn, according to a press release, the Lexington Herald-Leader and West Virginia Metro News. The sentence was the maximum for the two illegal gratuities charges to which Daugherty pleaded guilty.
The bribery scheme obligated the Social Security Administration to pay more than $550 million in lifetime benefits. U.S. District Judge Danny Reeves of Lexington, Kentucky, called the sentence a “sweet deal” and said it was “not anywhere near an appropriate punishment,” according to the Herald-Leader. Prosecutors said the sentence was appropriate given Daugherty’s age and health problems.
 
(Above Attorney , Eric Conn))
Conn pleaded guilty in March and fled on June 2. He was sentenced to 12 years in prison in absentia. A person claiming to be Conn wrote an email saying he fled because he thought it was unfair that Daugherty and another judge convicted in connection with the scheme would get sentences that were not as long as the one he would potentially receive.
Reeves denied Daugherty’s request to delay the start date of his prison term, the Herald-Leader reports. Reeves said Daugherty already had time to prepare for the sentence. He also noted that Daugherty had made an unsuccessful suicide attempt after his guilty plea, and he didn’t want to give him a chance to try again.
Reeves ordered Daugherty to repay the government $609,000 for the bribes he collected, as well as $93.8 million for the improperly awarded benefits. Reeves said he doubted the money would be collected.
Another judge, Charlie Paul Andrus, was convicted for conspiracy to retaliate against, a Whistleblower, a former employee who provided information to investigators. He was the Social Security Regional Chief Judge. He was sentenced earlier this month to six months in prison, the Herald-Leader reported.

 
 (Above, Former SSA Chief Judge Frank Cristaudo)
 The both worked for Judge Frank Cristaudo. He was the Chief Judge over all the SSA Judges. They worked for Cristaudo. He has not been charged. Instead, he took credit for what Daugherty and Andrus did, and he gor promoted. What's wrong with that picture? Is that the new America Way? The workers get convicted and go to prison? And the Boss gets promoted and lives happily ever after?

Tuesday, June 13, 2017

SSA Plans To Scrap Treating Physician's Rule

New Rule May Worsen Backlog For Social Security Disability Claimants



By the time Stephenie Hashmi of Lenexa, Kansas, was in her mid-20s, she had achieved a lifelong dream: She was the charge nurse at one of Kansas City’s largest intensive care units. But even as she cared for patients, she realized something was off with her own health.
“I remember just feeling tired and feeling sick and hurting, and not knowing why my joints and body was hurting,” Hashmi says.
Hashmi was diagnosed with systemic lupus, a disease in which the body’s immune system attacks its own tissues and organs.
She’s had surgeries and treatments, but now, at age 41, Hashmi is often bedridden. She finally had to leave her job about 6 years ago, but when she applied for Social Security disability benefits, she was denied.

“I just started bawling. Because I felt like, if they looked at my records or read these notes, surely they would understand my situation,” Hashmi says.
Lisa Ekman, director of government affairs for the National Organization of Social Security Claimants Representatives, says Hashmi’s struggle with the application process is not unusual.
“It is not easy to get disability benefits. It’s a very complicated and difficult process,” Ekman says.
Right now, just about 45 percent of people who apply for Social Security disability benefits are accepted, and getting a hearing takes an average of nearly 600 days.
The Kansas City office’s average hearing time is closer to 500 days, but its approval rate is slight lower at 40 percent.
The Backlog started snowballing about 10 years ago, around the time Jason Fichtner became acting Deputy Commissioner of the Social Security Administration (SSA).
He says that during the Great Recession, a lot of people who had disabilities applied but weren’t necessarily unable to work.
“But they’re on the margin,” Fichtner says. “They can work, but when the recession happens, those are the first people who tend to lose their jobs, and then they apply for disability insurance.”
There are now more than a million people across the country waiting for hearings. Adding to the strain, the Social Security Administration’s core operating budget has shrunk by 10 percent since 2010.
This spring, the SSA introduced changes to fight fraud and streamline the application process, including a new fraud-fighting measure that removes the special consideration given to a person’s long-time doctor.  (This is known as The Treating Physician's Rule)
Lisa Ekman says this is a mistake.
“Those changes would now put the evidence from a treating physician on the same weight as evidence from a medical consultant employed to do a one-time brief examination or a medical consultant they had do a review of the paper file and may have never examined the individual,” Ekman says.
She says this could lead to more denials for disabled people with complex conditions like lupus, multiple sclerosis or schizophrenia. These illnesses can affect patients in very different ways and may be hard for an outside doctor or nurse to assess.
She says more denials will lead to more appeals, which will only increase the backlog.
She is correct. The Treating Physician's Opinion is controlling.
https://judgelondonsteverson.me/2016/06/24/the-treating-physician-rule-is-controlling/
But former administrator Fichtner, now a senior research fellow at George Mason University’s Mercatus Center, says the SSA is obligated to weed out any fraud it can, including the admittedly rare cases of treating physicians tipping the scale in favor of their patients.
He says the SSA can still prioritize applicants.
“For patients that are really in dire condition and really have major disabilities, I don’t think they have to worry about this rule change,” Fichtner says.
He acknowledges, however, that the backlog needs attention and says the agency has safeguards to monitor whether the rule is working.
Back in her kitchen in Lenexa, Stephenie Hashmi’s husband Shawn prepares a family dinner she won’t be able to eat because she’s having problems with her esophagus.
Stephenie puts on a brave smile, but the progression of her illness and the ordeal with Social Security have made her increasingly pessimistic.
After several rejections, she’s now on her final appeal. Her hearing is scheduled for November – of   2018.

Tuesday, June 28, 2016

SSA ALJ's Decisions Have Persistent, Serious and Ignored Deficiencies, Appeals Court Says

 

7th Circuit judge reverses benefits denial,  and chastises Social Security process.




Seventh Circuit Judge Richard Posner had harsh words for the Social Security Administration (SSA) Office of Disability Adjudication And Review (ODAR) regarding Vocational Expert (VE) Testimony: clean up your act.

The 7th Circuit Court of Appeals reversed the denial of Anne Hill’s application for Disability Insurance Benefits (DIB)  and Supplemental Security Income (SSI), finding the Administrative Law Judge’s (ALJ) credibility analysis was flawed.
Ms. Hill, 56, worked for more than 13 years at a steel factory where she had to carry steel sheets weighing up to 100 pounds. The manual labor took a toll on her body and she applied for disability benefits in 2011. Her physical issues included total hip replacement, knee pain, recommended total shoulder replacement, and severe physical limitations in the use of her left side.

Her daily activities included babysitting, but she was unable to lift the child, did chores and went to church, but was unable to sit or stand for long periods of time.

The VE in her case testified that she could work at jobs classified as light and unskilled, such as dealer account investigator or a counter clerk. The VE, using his own experience to opine on how Ms Hill’s issues with her left side would impact her ability to work, testified she could still perform sedentary jobs such as a registration clerk.
https://www.amazon.com/socialNsecurity-Confessions-Social-Security-Judge/dp/1449569757?ie=UTF8&ref_=asap_bc
Using the five-step analysis for assessing disability, the ALJ concluded Hill was not disabled. The ALJ noted that Hill was not taking narcotic pain relievers, but Hill had testified that was because of her past alcohol addiction.  The judge reasoned Hill exaggerated her back pain because she hadn’t been diagnosed with certain conditions, but that conclusion is not supported by any medical evidence in the record.

“We are not confident that the ALJ would have reached the same conclusion about Hill’s credibility had the ALJ not inappropriately ‘played doctor,’ ignored possible explanations for Hill’s conservative treatment, and conflated a desire to work with the ability to do so. So the ALJ’s errors are not harmless,” Judge Anne Claire Williams wrote.

Circuit Court of Appeals Judge Posner wrote a concurring opinion in which he focused on “a persistent, serious and often ignored deficiency in opinions by the Administrative Law Judges of the Social Security Administration” in denying benefits.

He noted the issues regarding VE testimony concerning the number and types of jobs that an applicant deemed not to be totally disabled could perform.  It appears the VEs simply divide census data estimates on the number of jobs in a broad category that includes the narrow category of jobs that the applicant can perform, by the total number of narrow categories in the broad category.

The assumption is thus that every narrow category has the same number of jobs as every other narrow category within the broad category – a preposterous assumption, Posner wrote.

“In short, the vocational expert’s testimony was worthless – and this apart from the apparent arbitrariness of his numerology,” he continued. “It is time the Social Security Disability Office cleaned up its act.”

The case is Anne R. Hill v. Carolyn W. Colvin, acting commissioner of Social Security, 15-1230.
(By Jennifer Nelson)
Circuit Court of Appeals Judge Posner in his concurring opinion made the point that he has noticed “a persistent, serious and often ignored deficiency in opinions by the Administrative Law Judges of the Social Security Administration” in denying benefits. 
He stated that as fact. He did not offer or solicit any possible explanation for that fact. I submit that there is a probable easily explained reason for that fact. It is systemic. It could be remedied but at considerable expense. The SSA could hire only lawyers from the best law schools and pay them three times what the para-legal writers are receiving today. If only lawyers were writing SSA disability affirmations and the case load were reduced to a reasonable level, there would be a noticeable improvement in the quality of the denial decisions.
The hard truth is that SSA ALJs do not write their own decisions. They hold hearings and decide whether to pay or not to pay the claim. The decision is written by a staff writer who may not be a lawyer. The writers are often simply para-legal low level Government wage grade employees. Many para-legals have only completed a six month course at a junior college and received a para-legal certificate. Then through nepotism, favoritism, or affirmative action and luck they may find themselves at a Federal Agency writing Federal Court Decisions.
These writers do not have law degrees, but they are familiar with the SSA Regulations that pertain to disability evaluation. They simply choose which of the standard paragraphs in the SSA computer responds to each of the claimant’s allegations of symptoms and puts them into the decision. All of the parts of the decision are already written and are stored in the SSA computer.

SSA Must Follow Its Own Regulations

 

7th Circuit orders disability case back to administrative law judge


Because the Social Security Administration (SSA) Appeals Council (AC) did not consider new evidence when it was presented – despite its own regulations requiring it to do so – the 7th Circuit Court of Appeals sent a disability insurance benefits case back to the Administrative Law Judge (ALJ) for further proceedings.

At the time of the hearing on Angela Farrell’s application for disability benefits, she was married with two children and extremely overweight. She suffered from multiple issues, including anxiety, insomnia, fibromyalgia, and plantar fasciitis. Her initial application was denied, but the Appeals Council remanded her case for reconsideration. On remand, the ALJ again ruled against her, in part because of Farrell’s failure to establish definitively that she suffered from fibromyalgia.

This time, the AC affirmed the ALJ’s decision, despite new evidence before the AC that confirmed Farrell’s fibromyalgia. The District Court also affirmed.

In addition to finding the Appeals Council didn’t follow its own regulations that require it to consider “new and material evidence,” the 7th Circuit found several other aspects of the ALJ’s decision independently require correction, including that the ALJ “failed to grapple properly with the competing medical opinions” in considering Farrell’s application.

Her Treating Physician (TP), Dr. Sarah Beyer, recorded Farrell suffered from several conditions and alluded to the possibility of Farrell suffering from fibromyalgia.
The other Consultative Examining (CE) Physicians who reviewed Farrell’s file as part of the application evaluation process believe that Farrell only had “moderate difficulties” or “mild restrictions on Average Daily Activity Level (ADL).” One doctor testified there was no evidence of a confirmed diagnosis of fibromyalgia or anything that would give rise to arthritic pain.

The 7th Circuit concluded in Angela M. Farrell v. Michael J. Astrue, Commissioner of Social Security, 11-3589,  that the ALJ’s residual functional capacity determination for Farrell improperly discounted the Treating Physician, Dr. Beyer’s medical opinions and that the RFC determination was based on an incomplete assessment of the record.

The judges sent the case back to the ALJ for further proceedings. REMANDED back to SSA ALJ.

This is the Case of  Angela M. Farrell v. Michael J. Astrue, Commissioner of Social Security, 11-3589.

SSA Claimant Cannot Work If There Are No Jobs

 

The Commissioner  the Social Security Administration (SSA) has established a five step sequential evaluation process for determining whether a person is disabled.
1.       First, it is determined whether the person is engaging in substantial gainful employment (SGA). Is he/she working? If so disability benefits are denied.

2.       Second, if the person is not so engaged, it is determined whether the person has a medically severe impairment or combination of impairments. If the person does not have a medically determinable impairment or combination of impairments, benefits are denied.

3.       Third, if the person has a severe impairment, it is determined whether the impairment meets or equals one of a number of "listed impairments". If the impairment meets or equals a "Listed Impairment", the person is conclusively presumed to be disabled.

4.       Fourth, if the impairment does not meet or equal a "Listed Impairment", it is determined whether the impairment prevents the person from performing Past Relevant Work (PRW). If the person can perform PRW, benefits are denied.

5.       Fifth, if the person cannot perform PRW, the burden of proof shifts to the Commissioner of Social Security to show/prove that the person is able to perform any other kind of work.

The person is entitled to disability benefits only if he is unable to perform other work. (20 CFR Sec. 404.1520; Bowens v. Yuckert, 482 US 137, 140-142 (1987).


Step 4 explores a person's ability to perform work you have done in the past 15 years, despite their physical or mental impairments. 

 It does not matter at Step 4 if the claimant's former employer would not hire them, or if the place where the person worked is no longer in business, or if all those jobs are now done in China.

 If the Social Security Administration finds that the claimant can still perform his past relevant work, benefits are denied. The process proceeds to the 5th and final step.

Step 5 determines what other work, if any, a person can perform.

The claimant has the burden of proof and the burden of going forward with the evidence at Steps 1 through 4. 
At Step 5 the Burden of Proof shifts to the Commissioner of Social Security to prove that there is other work that the claimant can do despite mental and physical limitations.

The Social Security Administration considers the claimant's age, education, work experience and physical/mental condition to make this determination.
The  ALJ can use Medical-Vocational guidelines or “grids,” found at 20 C.F.R. Part 404, Subpart P, Appendix 2, at the fifth step of the disability determination after the claimant has been found not to meet the requirements of a listed impairment, but found nevertheless incapable of performing past relevant work.

The ALJ will determine what the claimant's Residual Functional Capacity (RFC) is. That means, considering all of his/her limitations what is the claimant still capable of doing in the workplace? What is the heaviest weight he/she can lift? How long can he/she stand without a break? How long can he/she sit without a break? What level of manual dexterity is he/she capable of?


VOCATIONAL EXPERTS (VE)
A Vocational Expert witness (VE) may be called to testify to determine his/her vocational profile and whether their skills are transferrable based on the Medical-Vocational Grid (20 C.F.R. Part 404, Subpart P, Appendix 2). The VE will classify the claimant's past relevant work according to the Dictionary of Occupational Titles (DOT). The VE will also give an opinion concerning whether there are there a significant number of jobs available in the local or national economy that he/she could apply for? A claimant cannot work if there are no jobs or a significant number of jobs available.

Vocational expert means a vocational professional who has the qualifications required by the Commissioner of SSA. The VE provides expertise to the ALJ at the hearing.

Consider this recent case where the 7th Circuit Court of Appeals rejected denial of disabled woman’s benefits.

Finding repeated fault with the Social Security Administration (SSA) Administrative Law Judge (ALJ) who denied a Chandler woman Social Security disability payments, the 7th Circuit Court of Appeals reversed and remanded the case back to the SSA.

Heather Browning claimed she was intellectually and physically disabled. She has an IQ of 68 and suffers from a disease that limits the movement of her left leg.

The 7th Circuit faulted the ALJ for concluding Browning’s IQ score was invalid and that she actually had higher mental faculties because she was assessed as being sarcastic.

“The administrative law judge thought the fact that the plaintiff goes to ‘bars and clubs,’ does some cooking and shopping, helps care for a pet, watches television, and ‘only takes over-the-counter pain medications,’ showed that she can do at least sedentary work,” Judge Richard Posner wrote in Heather Browning v. Carolyn W. Colvin, 13-3836.

“He suggested (probably on the basis of her not using prescription painkillers) that she had outgrown the effects of the Legg-Calve-Perthes disease that she had had as a child and that her current problems with her left leg were the result of her obesity. (But so what? The issue is the disabling effect of those problems.)”

The appellate court asserted the administrative law judge committed an error by instructing the Vocation Expert (VE) to assume Browning could perform sedentary work.

 Pointing to O’Connor-Spinner v. Astrue, 627 F.3d 614, 620 (7th Cir. 2010), Judge Posner wrote the VE could not determine Browning’s ability to work because the judge would not let her consider several of the claimant’s limitations.

Also, the 7th Circuit questioned how many jobs would be available in Chandler for Browning and noted the judge’s conclusion that Browning could work as a “hand packer” is not a job that exists in the U.S. Department of Labor’s Dictionary of Occupational Titles.

This was the Case of Heather Browning v. Carolyn W. Colvin, 13-3836.
(By Marilyn Odendahl)