Thursday, January 31, 2013

Party To Mediation Shoots Three People Before Suicide

A lawsuit over $20,000 worth of office furniture may be a factor in a deadly shooting in north-central Phoenix on Wednesday, 30 January 2013 according to court records.

Arthur Douglas Harmon is suspected of shooting three people outside the entrance of the three-story building at 7310 N. 16th St. Police say two of the victims — Mark Hummels, a partner with Osborn Maledon, and Steven Singer, president and CEO of Fusion Contact Centers — were the targets. Singer, 48, was killed. Hummels, 43, is in critical condition.

The third victim, 32-year-old Nichole Hampton, was not seriously injured.

All three men had been in a morning mediation session at the law office of DeConcini McDonald Yetwin & Lacy, trying to resolve the case. Hummels was Singer’s attorney.

The financial dispute between Singer and Harmon, who operated a business called Redback Design since 1990, dated to February 2012.

Harmon had been hired to move and refurbish furniture and cubicles in one of Fusion’s Santa Maria, Calif., facilities. It was a contract worth $47,000, according to court documents. But not all the work could be completed because the furniture wasn’t a brand that could be rehabbed.

Harmon and Singer exchanged lengthy e-mails about the contract.

Singer wanted to pay Harmon for the work he had completed and get a refund for what Harmon had been paid for but not done, according to the Fusion CEO’s e-mail submitted to the court. Singer wrote that he wanted to settle the disagreement and “move on,” according to one e-mail.

Harmon was paid $30,000 and then filed a lawsuit in April to get the rest of the amount from his original contract, plus $20,000 in damages, even though he acknowledged in a March e-mail to Singer that he couldn’t complete all of the work.

As the lawsuit dragged on, Harmon and son Stefan Harmon completed several real-estate transactions. Stefan Harmon paid $26,000 cash for his mother and father’s Phoenix house in July, according to the Information Market’s research of public real-estate records. The home was then valued at more than $100,000. That is the home on North 28th Street that authorities surrounded and searched after the shooting.

In September, Stefan Harmon borrowed $180,000 from his parents, who used the house as collateral, even though Stefan legally owned it. On Jan. 7, Fusion filed suit, alleging that Arthur Harmon, his wife, Ivett Huska, and son Stefan were party to a fraudulent transfer of the same home.

On Jan. 8, a motion for summary judgment filed by Fusion Contract Centers called for Harmon to pay Fusion $20,184 to settle the cases.

Harmon didn’t have an attorney.

Police say he fled the scene of the shooting, firing at someone who gave chase, police said. He remained at large late Wednesday.

Three others were taken to the hospital with unspecified injuries after the mid-morning shooting.

Singer, 48, was a father of two. His company, Fusion, is a call-center staffing agency based in Scottsdale with sites in California and Nevada. No one answered the phone Wednesday afternoon at the Scottsdale location.

Harmon has had previous financial troubles.

In 2005, Harmon and his wife faced $219,000 in debts, most of it to banks and credit-card companies. The couple filed for bankruptcy, which proved to be “a fairly mundane case,” said Lothar Goernitz, a trustee who helped resolve the matter.

At the time, the couple had three vehicles, including a 1974 Datsun. Collectively, the vehicles were worth less than $5,000.

While the bankruptcy was closed a year later, Harmon’s money problems apparently were not.

In 2005, Harmon filed court papers saying he had $43 in his checking account. By 2012, he testified as part of the lawsuit that was in mediation that he had just $17.
The Republic)

Wednesday, January 30, 2013

A Judge Must Be Totally Fair And Unbiased.

All Social Security Administration (SSA) Admin Law Judges must fulfill their duties with fairness and impartiality. Statements and actions by any Judge that displays unfairness, prejudice, partiality, bias, misconduct, or discrimination undermine public trust and confidence in the administrative process. All SSA ALJs perform an essential role in ensuring that our administrative process is fair to claimants by conducting fair and unbiased hearings and issuing decisions for claimants who are dissatisfied with Agency determinations in claims arising under the Social Security Act.Background: Statements and actions by our adjudicators that display unfairness, prejudice, partiality, bias, misconduct, or discrimination undermine public trust and confidence in our administrative process. Our ALJs perform an essential role in ensuring that our administrative process is fair to claimants by conducting de novo, informal, non-adversarial hearings and issuing decisions for claimants who are dissatisfied with our determinations in claims arising under the Social Security Act. All adjudicators, including our ALJs, must fulfill their duties with fairness and impartiality. We have three separate processes to guard against unfairness in our hearing process: (1) The Appeals Council review process, under which we review hearing decisions in accordance with 20 CFR 404.969, 404.970, 416.1469 and 416.1470, to ensure that ALJs fairly and impartially consider claims for benefits; (2) the Division of Quality Service's ALJ complaint investigation process; and (3) the civil rights investigation process for allegations of discrimination involving unfairness, prejudice, partiality, or bias based on race, color, national origin (including English language ability), religion, sex, sexual orientation, age, disability, or in retaliation for having previously filed a civil rights complaint. These three processes operate separately from one another and have different focuses. Claimants, parties, and the public may avail themselves of any or all three of the processes, as applicable, and all three processes may occur concurrently.

Social Security Ruling, SSR 13-1p; Titles II and XVI: Agency Processes for Addressing Allegations of Unfairness, Prejudice, Partiality, Bias, Misconduct, or Discrimination by Administrative Law Judges (ALJs).
SUMMARY: In accordance with 20 CFR 402.35(b)(1), the Commissioner of Social Security gives notice of Social Security Ruling, SSR-13-Xp. This Ruling explains the three separate vehicles we have for addressing complaints of unfairness, prejudice, partiality, bias, misconduct, or discrimination by an administrative law judge (ALJ). First, the Ruling describes the procedures that the Office of Disability Adjudication and Review's (ODAR) Appeals Council follows when it receives such allegations in the context of claim adjudication. Next, the Ruling describes how ODAR's Division of Quality Service reviews or investigates such complaints outside of the claim adjudication process to determine whether ODAR should take any administrative or disciplinary action with respect to the ALJ. Finally, the Ruling describes how the public may file with us complaints of discrimination based on race, color, national origin (including English language ability), religion, sex, sexual orientation, age, disability, or in retaliation for having previously filed a civil rights complaint against the agency. This Ruling supersedes our prior Notice of Procedures: Social Security Administration Procedures Concerning Allegations of Bias or Misconduct by Administrative Law Judges, 57 FR 49186 (October 30, 1992).

Through SSRs, we make available to the public precedential decisions relating to the Federal old-age, survivors, disability, supplemental security income, special veterans benefits, and black lung benefits programs. SSRs may be based on determinations or decisions made at all levels of administrative adjudication, Federal court decisions, Commissioner's decisions, opinions of the Office of the General Counsel, or other interpretations of the law and regulations.
Although SSRs do not have the same force and effect as statutes or regulations, they are binding on all of our components. 20 CFR 402.35(b)(1).
This SSR will be in effect until we publish a notice in the Federal Register that rescinds it, or publish a new SSR that replaces or modifies it.
Purpose: This Ruling clarifies the three separate processes we have for addressing allegations of unfairness, prejudice, partiality, bias, misconduct, or discrimination by an ALJ.
Citations (Authority): Sections 205(b), 809(a), and 1631(c) of the Social Security Act, as amended; Regulations No. 4, subpart J, sections 404.940, 404.967, 404.969, and 404.970, Regulations No. 5, subpart A, sections 405.25 and 405.30, and Regulations No. 16, subpart P, sections 416.1440, 416.1440, 416.1467, 416.1469, and 416.1470.

In this Ruling, we explain these three different processes and emphasize that:
1. The Appeals Council has authority under 20 CFR 404.970 and 416.1470 to act when a party is dissatisfied with a hearing decision or dismissal of a hearing request. Even when a party does not request review, the Appeals Council may initiate review under 20 CFR 404.969 and 416.1469. The Appeals Council considers allegations of unfairness, prejudice, partiality, or bias by ALJs under the standards for review in 20 CFR 404.970 and 416.1470. The Appeals Council may also consider objections from a party stating why a new hearing should be held before another ALJ pursuant to 20 CFR 404.940 and 416.1440. In evaluating such allegations, the Appeals Council considers only the evidence contained in the claimant's administrative record. The Appeals Council's process is the only process set forth herein that allows a claimant to obtain a remedy on the claim for benefits.

2. The Division of Quality Service may review and, if warranted, investigate any complaints against an ALJ, including allegations of unfairness, prejudice, partiality, bias, or misconduct. Under this process, the Division of Quality Service evaluates allegations to determine whether it is necessary to recommend administrative or disciplinary action against an ALJ.
3. Individuals who allege discrimination based on their race, color, national origin (including English language ability), religion, sex, sexual orientation, age, disability, or in retaliation for having previously filed a civil rights complaint, may also file a separate discrimination complaint with us using our civil rights complaint process.
Policy Interpretation
Allegations of Unfairness, Prejudice, Partiality, Bias, or Misconduct Evaluated in the Appeals Council Claims Review Process
The ALJ's decision is subject to Appeals Council review under 20 CFR 404.970 and 416.1470 if the claimant or other party or his or her representative timely requests review of the ALJ's decision. The Appeals Council may also review the ALJ's decision on its own motion under 20 CFR 404.969 and 416.1469.
The Appeals Council will grant a party's request for review and issue a decision or remand a case when:
* There appears to be an abuse of discretion by the ALJ;
* There is an error of law;
* The action, findings or conclusions of the ALJ are not supported by substantial evidence;
* There is a broad policy or procedural issue that may affect the general public interest; or
* There is new and material evidence submitted that relates to the period on or before the ALJ's hearing decision, and review of the case shows that the ALJ's actions, findings or conclusions are contrary to the weight of the evidence currently of record.
Under our regulations, an ALJ must not conduct a hearing if he or she is prejudiced or partial with respect to any party or has any interest in the matter pending for decision. A claimant or other party to the hearing who objects to the ALJ who will conduct the hearing must notify the ALJ at his or her earliest opportunity. The ALJ will then decide whether to proceed with the hearing or to withdraw. If the ALJ does not withdraw, the claimant or other party to the hearing may, after the hearing, present objections to the Appeals Council as to reasons why the hearing decision should be revised or a new hearing should be held before another ALJ.
If, in conjunction with a request for review, the Appeals Council receives an allegation of ALJ unfairness, prejudice, partiality, or bias, the Appeals Council will review the claimant's allegations and hearing decision under the abuse of discretion standard. We will find an abuse of discretion when an ALJ's action is erroneous and without any rational basis, or is clearly not justified under the particular circumstances of the case, such as where there has been an improper exercise, or a failure to exercise, administrative authority. For example, if the record shows that the ALJ failed to conduct a full and fair hearing by refusing to allow the claimant to testify or cross-examine witnesses, we will find that an abuse of discretion has occurred. An abuse of discretion may also occur where there is a failure to follow procedures required by law.

An ALJ also abuses his or her discretion if the evidence in the record shows that the ALJ failed to recuse himself or herself from a case in which he or she was prejudiced or partial with respect to a particular claim or claimant, or had an interest in the matter pending for decision. In this instance, we will remand the case to another ALJ for a new hearing or revise the ALJ's decision pursuant to 20 CFR 404.940 and 416.1440.
--This is a summary of a Federal Register article originally published on the page number listed below--
Notice of Social Security Ruling (SSR).
Citation: "78 FR 6168"
Document Number: "Docket No. SSA 2012-0071"
Federal Register Page Number: "6168"
Copyright: (c) 2013 Federal Information & News Dispatch, Inc.

Friday, January 25, 2013

It Is Rape Only If You Are Married.

She thought attacker was her boyfriend, but court says 1872 impersonation law applies only to married women.

calif court
(Photo: Robyn Beck, AFP/Getty Images)
A Los Angeles-based state appeals court recently overturned a the conviction of a man who raped a woman in her sleep. The victim, who at first thought the man was her boyfriend, tried to stop him once she regained consciousness enough to realize he was an imposter.
However, because the woman and her boyfriend are not a married couple, her rapist will walk away without penalty. The court said that its decision is based on an 1872 California law stating that tricking a victim into sex by impersonation counts as rape only if the victim is married. This is a ridiculous law that should to be changed.
Because a 19th-century state law does not explicitly protect unmarried rape victims from attackers pretending to be a boyfriend, a California appeals court Thursday overturned a man's conviction for having sex with a sleeping woman.
The 2nd District Court of Appeal in Los Angeles ordered a new trial for Julio Morales, who was convicted of raping a friend's 18-year-old sister in Cerritos after a party in February 2009. He was sentenced to three years in prison.
Here's how the court's opinion, which includes details of the encounter, framed the case:
A man enters the dark bedroom of an unmarried woman after seeing her boyfriend leave late at night, and has sexual intercourse with the woman while pretending to be the boyfriend. Has the man committed rape? Because of historical anomalies in the law and the statutory definition of rape, the answer is no, even though, if the woman had been married and the man had impersonated her husband, the answer would be yes.
Morales' first trial ended in a hung jury. Jurors in the second trial convicted him of rape of an unconscious person after prosecutors told them they could find him guilty under two conditions: either the victim was sleeping, unconscious or not able to refuse sex, or else the attacker misled her or lied about his identify. Under California law, however, impersonation applies only if a woman is married.
The three-judge appellate panel reversed the conviction, saying it "cannot discern from this record whether the jury convicted defendant on the correct or incorrect theory."
The opinion states that the law allows the "continued existence of a separate provision that expressly makes sexual intercourse by impersonation a rape, albeit only when the victim is married and the perpetrator impersonates the victim's spouse."
"Therefore, we reluctantly hold that a person who accomplishes sexual intercourse by impersonating someone other than a married victim‟s spouse is not guilty of the crime of rape of an unconscious person" under a provision of state law, Justice Thomas Willhite wrote for the panel.
The justices noted that state courts "have been inconsistent when characterizing sex crimes involving impersonation" and that "there appears to be little discussion in the legislative history" about what the Legislature really intended.
For a report with a little more attitude, see the LA Weekly.
Friday, a state lawmaker said he would reintroduce legislation next week to expand the 1872 law to protect unmarried women or men who do not live together.
"Californians are justifiably outraged by this court ruling, and it is important that the Legislature join together to close whatever loopholes may exist in the law and uphold justice for rape victims," Assemblyman Katcho Achadjian, a Republican from San Luis Obispo, said in a news release.
The state Assembly passed his measure last year but it died in the Senate Public Safety Committee.

Friday, January 18, 2013

Social Security Is Your Right. It Is Not a Benefit.

This is worth reading and thinking about. Pay attention to your next Social Security income, whether you get a check or an electronic deposit....note what it is now called. Have you noticed, your Social Security check is now referred to as a "Federal Benefit Payment"?  This touches a nerve in me, and I hope it will in you. The government is now referring to our Social Security checks as a “Federal Benefit Payment.

This isn’t a benefit – its earned income!Not only did we all contribute to Social Security but our employers did too.It totaled 15% of our income before taxes.If you averaged $30K per year over your working life, that's close to $180,000 invested in Social Security.If you calculate the future value of your monthly investment in social security ($375/month, including both you and your employer’s contributions) at a meager 1% interest rate compounded monthly, after 40 years of working you'd have more than $1.3+ million dollars saved! This is your personal investment.Upon retirement, if you took out only 3% per year, you'd receive $39,318 per year, or $3,277 per month. That’s almost three times more than today’s average Social Security benefit of $1,230 per month, according to the Social Security Administration (Google it - it’s a fact).

And your retirement fund would last more than 33 years (until you're 98 if you retire at age 65)!I can only imagine how much better most average-income people could live in retirement if our government had just invested our money in low-risk interest-earning accounts.Instead, the folks in Washington pulled off a bigger Ponzi scheme than Bernie Madoff ever did.They took our money and used it elsewhere. They “forgot” that it was OUR money they were taking. They didn’t have a referendum to ask us if we wanted to lend the money to them. And they didn’t pay interest on the debt they assumed. And recently, they’ve told us that the money won’t support us for very much longer. But is it our fault they misused our investments? And now, to add insult to injury, they’re calling it a “benefit,” as if we never worked to earn every penny of it. Just because they “borrowed” the money, doesn't mean that our investments were a charity!

We have earned our right to Social Security and Medicare. Demand that your legislators bring some sense into our government –Find a way to keep Social Security and Medicare going, for the sake of that 92% of our population who need it.

Sunday, January 13, 2013

Who Will Obama Select As The New Social Security Commissioner?

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.
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.  
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 is a former Democratic U.S. senator from New Jersey)


Tuesday, January 1, 2013

SSA Refuses To Tell Claimants The Name Of The Judge Who Will Hear Their Case

Social Security Administration Refuses To Tell Claimants The Name Of The Judge Who Will Hear Their Case

by London Steverson on Tuesday, January 1, 2013 at 9:27pm ·

Something rotten has been developing throughout 2012 in connection with assigning Social Security Administrative Law Judges (ALJ) to disability hearings. The Social Security Administration (SSA) has refused to inform the claimant and his or her representative of the identity of the judge who will be presiding at their hearing. In many SSA Hearing Offices across the USA the claimant is no longer being told the identity of the administrative law judge before the hearing. The Social Security Administration claims that certain representatives have been engaging in the clever practice of “judge shopping” or "forum shopping".  It appears that most of the  “shopping” has taken place in the practice of video hearings. In a video hearing the claimant appears in a Hearing Room in a city near his home in front of a large television screen and the judge is in another city in another hearing room with his own television screen. The hearing is conducted by means of a video telephone conference. There is considerable speculation as to whether this practice actually constitutes due process of law. The claimant never sits in the same room with a real, living and breathing judge. Also, there has been must disagreement as to whether a judge can adequately determine the credibility and the demeanor of a witness over a television screen.
This is how "judge shopping" works.

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When an attorney representative learns the name of the administrative law judge, he or she objects to the hearing by video if they want to get another judge assigned. Claimants try to avoid judges that have a record of denying the majority of their cases. On the other hand, they leap at the chance to try a case before a judge considered lenient. That means the judge has a reputation for granting benefits in most of his cases.
Whether you get paid early in the Social Security disability benefits process depends primarily on whether you get assigned the "right" ALJ. That's right; it comes down to "the luck of the draw". That is, unless your representative is skilled in the art of judge shopping. The most extreme types of ALJs occupy both ends of the spectrum. There are some who will reverse and grant benefits to 200 or more claimants a month without holding a hearing. They make what are called “on-the-record” decisions.
Then there are the ALJs who treat every case as a Dred Scott Decision. They over litigate the case. If they find any issue that was not disposed of by the State Disability Determination Service (DDS), they will declare that the case is not ripe for review and not ready for a hearing before an ALJ. Then they will remand the case to the DDS for a finding on that issue. Such a maneuver can add more than 6 months to the already long processing time. Or they might decide that the most recent medical examinations in the record are over one year old and order that you be examined again before scheduling a hearing. Both types of ALJs may even exist in the same hearing office.
While judge shopping is not technically something outside of the prerogatives of a claimant, the practice of shopping for the "right" ALJ has created havoc with the Social Security Administration’s ability to process its cases. The back log of cases waiting to be heard is long and is getting longer. Many claimants have to wait for an extended period, sometimes 5 years or more, just to sit down in front of an administrative law judge. In the past judge shopping only occurred with administrative law judges who had a low case approval rate, and attorneys and para-legal representatives tried to legally avoid them.
To fight this nuisance practice, the Social Security Administration has responded with a  “policy” of refusing to identify the ALJ until the day before or, in some cases, the day of the hearing. Some frustrated lawyers have used the FOIA (Freedom of Information Act) to request the identity of the judge. The Social Security Administration has refused citing the Act’s exemption language, and specifically citing two exemptions. The exemptions deal with personal issues and criminal proceedings.
Since no one is seeking personal data on administrative law judges (date of birth, educational history, work history, etc), and typically, Social Security Disability hearings do not involve anything remotely criminal, the exemptions are likely misplaced. Until a ruling is made on the issue, though, the administrative law judge assignment remains a mystery and a bump in the road for the Social Security Disability claimant and his or her attorney representative.
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From a game of "Musical Chairs" to "Guess Who's Coming To Court". First, the claimants started to shop for the "right" judge to hear their case; then the Social Security Administration started to withhold the identity of the judge assigned the case until the day of the hearing. This would almost be comical if the stakes were not so high. The Disability Determination Process should be transparent and adhere to the highest principles of fundamental legal due process that American citizens have a right to expect from their Government. The SSA should not play 'cat-n-mouse' with the name of the judge. Such childish behavior does not generate respect for the legal system or the disability process.

Sexual Assaults At Military Academies Up 60 Percent

Sex Assault Reports At Academy Up 60 Percent

Sexual assault reports at the Air Force Academy jumped nearly 60 percent during the last academic year while the prevalence of the crime remained about the same, according to a new Defense Department study.
The results, which mirror the two other service institutions — the Military Academy and the Naval Academy — signal greater victim confidence but show that efforts to reduce sexual assaults among future military leaders have been unsuccessful.
Air Force cadets made 52 sexual assault reports during the 2011-2012 year, up 58 percent from 33 in 2010-2011. They also accounted for 65 percent of the 80 reports made at all three academies, despite sim­ilar student populations.
In 44 of the 80 reports, victims said they were victimized by a fel­low cadet or midshipman, the study said. Twenty-five incidents occurred on academy grounds.
Since sex assault is one of the most under-reported crimes, the military has long relied on an anonymous survey to measure the rate of such incidents, director of the DoD Sexual Assault Preven­tion and Response Office Maj. Gen. Gary Patton said in a news conference with reporters before the release of the report Dec. 21.
Fewer than 15 percent of sexual assault victims in a college envi­ronment report the crime, accord­ing to the study. That number stands at around 11 percent at the service academies.
At the Air Force Academy, far more are making reports — about 28 percent of victims, Col. Stella Renner, vice commandant of cul­ture and climate, said in a tele­phone interview.
“While we hate to see we have sexual assaults, we are very proud we have a strong reporting cli­mate,” Renner said.
That shows cadets feel more comfortable asking for help after they are victimized and that there is increased trust in the system, she insisted.
“We’re seeing cases where vic­tims who have come forward in the past are bringing in other people they know of who may have had a situation they haven’t reported yet. Nobody’s going to tell on you. It’s private. You can start healing and moving on,” Renner said.
Reporting has been on the uptick at all three academies since 2008 and increased by 23 percent overall from the last academic year, Patton said.
“Any sexual assault is bad, and our goal is always to eliminate sexual assault,” he said. “The more we know about the incidents that do happen, the more we can help victims become survivors, [gain] insight into what’s going on” and prosecute perpetrators.
But both Patton and Defense Secretary Leon Panetta expressed concern at what they described as a persistent problem and a lack of progress in combating it.
“There is not enough progress in preventing sexual harassment and assaults,” Patton said.
In a memo, Panetta directed the institutions to find new ways to “integrate sexual assault and harassment prevention into the full spectrum of academy life and learning” and ordered them to report back March 29.
The DoD report followed a year of high-profile sex scandals in the military, from the resignation of CIA director and retired Army Gen. David Petraeus to the inves­tigation of more than two dozen military training instructors at Joint Base San Antonio-Lackland.

There was no statistical increase in incidents of sexual assault at the Air Force Academy from 2010-2011, Renner said. Sexual harass­ment decreased significantly there but remained unchanged at the Military and Naval academies, the study showed.
Victims who did not make a report indicated in the anonymous survey that they took care of the incident themselves, that they did not want anyone to know about it and did not want people gossiping about what had happened to them.
Those who chose to make a report said they needed help deal­ing with an emotional event, that they wanted to stop the offender from hurting others and that they wanted to see justice served.
Reports of sexual assaults fall into two categories: restricted and unrestricted. Unrestricted reports involve law enforcement and the chain of command of the victim and the accused. Restricted reports afford victims privacy while making support services available to them.
Twenty-one of the 52 reports at the Air Force Academy were unre­stricted, Renner said.
She said the academy plans to study each of the reports. “We’ll continue to work and see if there are other things we need to consid­er. We look for trending informa­tion to see if there might be some­thing we can do from a police [change], lights, locks on doors.” Next year, the academy plans to begin bystander intervention train­ing. The training teaches cadets how to identify potentially danger­ous situations and intervene safely.
Teresa Beasley, sexual assault response coordinator at the Air Force Academy, called it “a good way ahead. I think they want to help each other,” she said of cadets. “This will give them the skills to do that.” Beasley said the academy has worked hard to raise awareness around campus. “Whenever you raise awareness, reports go up,” she said. “I consider anyone that walks in a victory.”                   (By Kristin Davis)

Air Force Times
January 7, 2013