Thursday, May 30, 2013

Former Social Security Medical Expert Sentenced To Years In Federal Prison For Fraudulently Bilking SSA Of $1.5 Million In Benefits





( Wed, 29 May 2013 10:46:43 PST)
SAN DIEGO (CNS) - Doctor  Roberto J. Velasquez, a clinical psychologist, from National City,CA was sentenced Wednesday, May 29th, to nearly two years in federal prison for fraudulently obtaining government disability benefits via a scheme in which the Social Security Administration was swindled out of at least $1.5 million.

While handing down the 21-month custody term in federal court in downtown San Diego, Chief District Judge Barry Ted Moskowitz also ordered Doctor Velasquez, 55, to repay the funds he illicitly obtained.

Over a six-year period beginning in 2006, Velasquez falsely certified that dozens of able-bodied patients were disabled, according to court documents.

To further the fraud, Velasquez made up patient histories, fabricated test results, suggested symptoms and complaints that did not exist, and intentionally underestimated patient scores on standardized tests, prosecutors said.

In exchange for each false report, Velasquez charged his patients a $200 kickback, according to the government.

In his plea agreement, the defendant, who was arrested in the case 13 months ago, admitted that he faked disability-exception forms used by the Department of Homeland Security during naturalization processes.

Doctor Velasquez's false certifications allowed immigrants to avoid taking civics and English-language portions of the U.S. citizenship exam, prompting the Department of Homeland Security to grant exemptions to about 50 applicants who were not actually disabled.

According to court documents, Doctor Velasquez coached his patients to skirt the citizenship requirements by instructing them to use poor English during interviews and avoid mentioning that they had college educations.

He also lied, prosecutors said, about the length of time he had been treating his patients, in order to falsify a record that would satisfy reviewers at the Social Security Administration, where he previously had worked as a consultant. (He was probably an expert medical witness.)
In addition, Doctor Velasquez conceded that he submitted phony medical reports to the Social Security Administration, falsely certifying that certain patients were eligible for disability benefits when he knew they were not, and admitted that roughly one-third of his patient files contained false statements and bogus certifications of disability.

The fraud was uncovered through an undercover operation conducted by the Department of Homeland Security, Immigration and Customs Enforcement/Homeland Security Investigations and the Office of Inspector General in the Social Security Administration.

The prosecution was part of the U.S. Attorney's Health Care Fraud Initiative.

Wednesday, May 29, 2013

Being Born A Man Does Not Render A Woman Disabled

French v. Commissioner of Social Security (USA)

April 23, 2013
 ESPER FRENCH, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.



UNITED STATES DISTRICT COURT

March 12, 2013, Decided

OPINION

Plaintiff Esper French appeals Defendant Commissioner of Social Security’s (“Commissioner”) denial of her applications for disability insurance benefits and supplemental security income.
 For the reasons set forth below, this Court finds that substantial evidence supports the Commissioner’s decision.
The Court therefore RECOMMENDS that Plaintiff’s Motion for Summary Judgment be DENIED , that Defendant’s Motion for Summary Judgment be GRANTED , and that the decision of the Commissioner of Social Security be AFFIRMED .
I. BACKGROUND
Plaintiff was 52 years old on the date she alleges she became disabled.  Plaintiff graduated from high school and completed some college work She previously worked as a computer-aided drafter (CAD), a general laborer, and as a care giver.  She alleges that she cannot work due to her depression,  gender dysphoria and deafness.
A. Procedural History
On November 5, 2008, Plaintiff applied for disability insurance benefits (“DIB”) and supplemental security income (“SSI”) asserting that she became unable to work on January 2, 2006.  The Commissioner initially denied Plaintiff’s disability application on May 16, 2009.
 Plaintiff then requested an ALJ administrative hearing, and on September 27, 2010, she appeared with counsel before Administrative Law Judge Timothy C. Scallen, who considered her case de novo  Vocational expert Elizabeth A. Pasikowski also appeared at the hearing.
In an October 20, 2010 decision, ALJ Scallen found that Plaintiff was not disabled.
 The ALJ’s decision became the final decision of the Commissioner on April 26, 2012, when the Social Security Administration’s Appeals Council denied Plaintiff’s request for review.
 Plaintiff filed this suit on June 27, 2012.
B. Medical Evidence
In November 1997, records from Foote Hospital show that Plaintiff was hospitalized for psychiatric issues. An assessment at that time indicated depression, suicidal  ideation,
In or around 2001, Plaintiff underwent a trans-gender surgery to become female.
Plaintiff is referred to herein as “she” when referring to evidence post-dating the gender change.
An earlier hearing on April 26, 2010 was adjourned so that Plaintiff could obtain representation.
 ALJ Scallen also presided over the first, abbreviated hearing,
and trans-sexual disorder/gender identity disorder.
On February 19, 1998, Plaintiff was admitted to the hospital after a self-castration attempt.  Hospital notes indicate that Plaintiff wanted a sex change operation, but was unable to find a physician to perform it.  Plaintiff was taking Premarin – a hormone replacement therapy most commonly used in post-menopausal women.  Plaintiff underwent a surgical procedure to debride his scrotum, evacuate the clot, and properly close the wound.
On May 2, 1998, Plaintiff was admitted to the hospital after attempting to amputate his left testicle.  Emergency room notes from May 29, 1998 indicate that Plaintiff had undergone a sexual reassignment surgery and continued to undergo hormonal therapy. Plaintiff wanted to speak to someone in the psychiatric unit regarding his mood swings, volatile moods, and fears of hurting himself. Emergency room notes state that Plaintiff’s symptoms were partly due to the hormone therapy, and also to the adjustment to his new female role.
 Plaintiff was diagnosed with adjustment disorder and was instructed to continue outpatient therapy and to return if symptoms worsened.
On August 27, 2000, Plaintiff was admitted to the hospital for depression. Plaintiff reported feeling depressed and frustrated with the way his coworkers were treating him because of changing his identity to a woman.  Plaintiff denied suicidal or homicidal ideation. Plaintiff was diagnosed with adjustment disorder, depressed mood and gender identity disorder and was advised to follow-up with counseling.) Plaintiff was also given instructions to return if symptoms worsened or persisted.
These notes likely reflect Plaintiff’s self-castration attempts, as formal trans-gender surgery occurred in or around 2001.
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On September 30, 2000, a bone density test of Plaintiff’s lumbar spine  and left hip was performed.  Testing indicated osteopenia of the lumbar spine with a slightly increased risk of pathological fracture.  Results also showed osteopenia of the left hip with a slightly increased risk for pathological fracture.
In February 2001, emergency room records indicate that Plaintiff continued to pursue a sex change – from male to female.  Plaintiff made comments indicating that she believed that she was a “joke” and that “no one care[d] if [she was] dead or alive.”  The emergency room physician indicated that Plaintiff also had suicidal ideation.
On April 8, 2009, Dr. Eugene Rontal examined Plaintiff’s hearing capacity.  Dr. Rontal reported that Plaintiff had worn hearing aids, but had lost them.  The examination revealed normal tympanic membranes and ear canals.  An audiogram demonstrated a moderate sensorineural hearing loss in both ears.  With a hearing aid, Plaintiff had 96% discrimination at 50dB. Dr. Rontal opined that Plaintiff had bilateral sensorineural hearing loss of a hereditary origin.  Dr. Rontal further believed that a hearing aid was the only  treatment available.
On April 24, 2009, Michele Bridges prepared a case analysis for the State concluding that Plaintiff would be able to perform some type of low skilled work that did not heavily rely on hearing.  Ms. Bridges also concluded that working with the public, working in a fast food setting that relies heavily on hearing, or work requiring phone use would be difficult.
On April 27, 2009, Dr. Donald Kuiper completed a physical residual functional capacity assessment. In it, Dr. Kuiper opined that Plaintiff could occasionally lift and/or carry 50 pounds, frequently lift and/or carry 25 pounds, stand and/or walk about 6 hours in an 8-hour workday, sit for
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a total of about 6 hours in an 8-hour workday, and was unlimited in her ability to push and/or pull.  Dr. Kuiper noted no postural, manipulative, visual, communicative or environmental limitations.  After indicating that Plaintiff had no communication limitations, Dr. Kupier concluded that Plaintiff “retains sufficient hearing to be able to avoid normal workplace hazards and understand occasional oral instructions.”  Dr. Kuiper noted an audiogram and ENT exam dated April  8, 2009 which demonstrated a non-listing level hearing and discrimination limitation.  Further, Dr. Kupier reported that an audiogram performed in 2006 confirmed the same level of limitation.
On August 23, 2010, clinical therapist Bernadine McClung evaluated Plaintiff and determined that Plaintiff had gender identity disorder together with dysthymic disorder depressed mood. Ms. McClung assessed Plaintiff’s Global Assessment Functional (GAF) Scale score at 30.  Moreover, Ms. McClung concluded that Plaintiff exhibited “[s]erious impairment in judgment, preoccupation with becoming and looking like a female, suicidal ideation, [and an] inability to function in almost all areas.”  Ms. McClung further noted that Plaintiff, “[l]ack[ed] motivation to get out of bed, [and was] unable to obtain and keep a job.
On September 23, 2010, Jennifer Turecki-Kaiser, MA, prepared an initial vocational assessment (IVA) to determine Plaintiff’s ability to participate in vocational rehabilitation as it related to Plaintiff’s ability to return to gainful employment. Ms. Turecki indicated that Plaintiff was teaching herself to read lips.  Despite this, Ms. Turecki had to repeat and rephrase herself numerous times throughout the interview.  Ms. Turecki noted that Plaintiff had been diagnosed with moderate, bilateral hearing loss.  Ms. Tuercki also noted that in 2006, Plaintiff’s hearing loss rose to the level of disability.  Ms. Turecki pointed out Plaintiff’s
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numerous unskilled labor positions and that Plaintiff was “let go” from numerous positions due to her hearing loss and gender modification issues.  Ms. Turecki also noted that Plaintiff was “harassed, ridiculed and at times, felt threatened by others due to her gender reassignment.”  Ms. Turecki concluded that Plaintiff’s past work was at the unskilled or semi-skilled level with the highest specific vocational preparation of 3. She noted no transferrable skills from Plaintiff’s past work.  As such, based on education and skill level, Ms. Turecki concluded that Plaintiff was a candidate for unskilled work only. With Plaintiff’s hearing loss, Ms. Turecki also concluded that only jobs that did not require hearing should be considered.  After reviewing Dr. Gray’s September 20, 2010 RFC assessment, Ms. McClung’s report, Ms. Bridges’ assessment, and taking into account Plaintiff’s hearing loss and trans-gender issues, Ms. Turecki concluded that “her impairments and symptoms [] would make gainful competitive employment a non-realistic goal.”
C. Testimony at the Hearing Before the ALJ
1. Plaintiff’s Testimony
Plaintiff is trans-gendered female. She lives with two roommates.  Plaintiff reported that she did most of the housework, although one of her roommates was a hoarder and did not allow Plaintiff to pick up any of her belongings. Plaintiff also reported that she cooked all of the meals. Plaintiff reported that she watched television; however, because of her hearing loss, she directed the sound through a walkman as high as she can get it.  Plaintiff reported being active socially with her roommates, going to movies, parks, coffee houses, and open microphone
Dr. Gray’s RFC assessment, while noted in Ms. McClung’s report, was not included in the administrative record.
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nights.  Plaintiff also reported reading science fiction and collecting Star Trek memorabilia.
Plaintiff reported that her hearing  aids were stolen from her purse and that she had not replaced them.  Plaintiff reported having no insurance to pay for replacement hearing aids.  Without the assistance of her hearing aids, Plaintiff testified that she communicated through reading lips and by using some sign language. Plaintiff testified that she was only able to understand about 40 to 50 percent of what is going on around her due to her lack of hearing. Plaintiff reported that she was afraid to drive because she cannot hear a car horn and felt she was a hazard to people on the road.  Plaintiff reported that the last time she drove was in 2008.  Plaintiff testified that the last time she worked was in 2008 as a care giver for an autistic child. She testified that she only worked for three or four weeks before quitting because she felt as though she was more of a burden than a help.  Before that, Plaintiff reported that she worked for a temporary service at a factory.  However, despite typically making a good first impression on temporary employers, Plaintiff testified that soon employers would realize that she could not pay attention   and her supervisors would get very upset with her and would ask her to leave the building.
Plaintiff also reported upsetting experiences associated with her gender change from 1998 until 2006.  Plaintiff testified that people would make comments like: “it might be better off if [she would] just put the gun to [her] own head and save some heterosexual the need to go to prison for the rest of his life.”  Plaintiff reported that she got to a point in her gender dysphoria, that she castrated herself. ) Due to the lack of understanding of the subject, Plaintiff reported that this is not uncommon within the trans-gender community. Plaintiff
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reported that she became disabled on January 2, 2006.  Despite this, Plaintiff attempted
to continue working; however, she reported that her hearing remained compromised.
Plaintiff testified that the buzzing she experienced in her ears affects her concentration.
Plaintiff did not take any medications for her depression.  Plaintiff did, however, report
taking hormone therapy medication.
2. The Vocational Expert’s Testimony
The ALJ solicited testimony from a vocational  xpert (“VE”) about job availability for a
hypothetical individual of Plaintiff’s age, education, and work experience who was capable of
performing all exertional demands, but has the following non-exertional limitations: first of all, avoiding concentrated exposure to excessive noise I’m going to say simple, routine, repetitive tasks for the reason that her concentration is interrupted by not only the constant buzzing the way you’ve said it in your ear which interferes with concentration, but also the psychological problems as well, no interaction with the public, occasional interaction with coworkers, which requires only communication at close distances, and limit to occasional oral instructions.
The VE testified that the general laborer position would apply. However, if there
was a restriction of not being able to interact at all with co-workers, then the general laborer position
would not apply.  The ALJ then asked if the position could allow for using headphones to
drown out noise. The VE responded that it would not.
II. THE ALJ’S APPLICATION OF THE DISABILITY FRAMEWORK
Under the Social Security Act (the “Act”), Disability Insurance Benefits  (for qualifying wage
earners who become disabled prior to expiration of their insured status) and Supplemental Security
Income “are available only for those who have a ‘disability.’” See Colvin v. Barnhart , 475 F.3d 727,
730 (6th Cir. 2007). The Act defines “disability,” in relevant part, as the:
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inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.
42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A) (DIB); 20 C.F.R. § 416.905(a) (SSI).
The Social Security regulations provide that disability is to be determined through the
application of a five-step sequential analysis:
Step One: If the claimant is currently engaged in substantial gainful activity, benefits are denied without further analysis.
Step Two: If the claimant does not have a severe impairment or combination of impairments that “significantly limits . . . physical or mental ability to do basic work activities,” benefits are denied without further analysis.
Step Three: If the claimant is not performing substantial gainful activity, has a severe impairment that is expected to last for at least twelve months, and the severe impairment meets or equals one of the impairments listed in the regulations, the claimant is conclusively presumed to be disabled regardless of age, education, or work experience.
Step Four: If the claimant is able to perform his or her past relevant work, benefits are denied without further analysis.
Step Five: Even if the claimant is unable to perform his or her past relevant work, if other work exists in the national economy that plaintiff can perform, in view of his or her age, education, and work experience, benefits are denied.
See 20 C.F.R. §§ 404.1520, 416.920; see also Heston v. Comm’r of Soc. Sec. , 245 F.3d 528, 534 (6th
Cir. 2001). “The burden of proof is on the claimant throughout the first four steps . . . . If the
analysis reaches the fifth step without a finding that the claimant is not disabled, the burden transfers
to the [Commissioner].” Preslar v. Sec’y of Health and Human Servs. , 14 F.3d 1107, 1110 (6th
Cir. 1994).
At step one, ALJ Scallen found that Plaintiff had not engaged in substantial gainful activity
since the alleged disability onset date of January 2, 2006. (Tr. 24.) At step  two, he found that
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Plaintiff had the following severe impairment: deafness. Next, the ALJ concluded that this impairment did not meet or medically equal a listed impairment.  Between steps three and four, the ALJ determined that Plaintiff had the residual functional capacity to perform “a full range of work at all exertional levels but with the following nonexertional limitations: avoid concentrated exposure to excessive noise; simple, routine, repetitive tasks; no interaction with the public; occasional interaction with co-workers; tasks which only require communication at close contact.” At step four, the ALJ found that Plaintiff was able to perform her past work as a general laborer.  The ALJ therefore concluded that Plaintiff was not disabled as defined by the Social Security Act.
III. STANDARD OF REVIEW
This Court has jurisdiction to review the Commissioner’s final administrative decision pursuant to 42 U.S.C. § 405(g). Judicial review under this statute is limited: the Court “must affirm the Commissioner’s conclusions absent a determination that the Commissioner has failed to apply the correct legal standard or has made findings of fact  unsupported by substantial evidence in the record.” Longworth v. Comm’r of Soc. Sec. , 402 F.3d 591, 595 (6th Cir. 2005) (internal quotation marks omitted).
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.”
Rogers v. Comm’r of Soc. Sec. , 486 F.3d 234, 241 (6th Cir. 2007). If the Commissioner’s decision is supported by substantial evidence, “it must be affirmed even if the reviewing court would decide the matter differently and even if substantial evidence also supports the opposite conclusion.” Cutlip v. Sec’y of Health & Human Servs. , 25 F.3d 284, 286 (6th
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Cir. 1994); see also Mullen v. Bowen , 800 F.2d 535, 545 (6th Cir. 1986) (en banc) (noting that the substantial evidence standard “presupposes . . . a zone of choice within which the decisionmakers can go either way, without interference by the courts” ).
When reviewing the Commissioner’s factual findings for substantial evidence, the Court is limited to an examination of the record and must consider that record as a whole. Bass v. McMahon , 499 F.3d 506, 512-13 (6th Cir. 2007); Wyatt v. Sec’y of Health & Human Servs. , 974 F.2d 680, 683 (6th Cir. 1992). The Court “may look to any evidence in the record, regardless of whether it has been cited by the Appeals Council.” Heston v. Comm’r of Soc. Sec. , 245 F.3d 528, 535 (6th Cir. 2001). There is no requirement, however, that either the ALJ or this Court discuss every piece of evidence in the administrative record. Kornecky v. Comm’r of Soc. Sec. , 167 F. App’x 496, 508 (6th Cir. 2006). Further, this Court does “not try the case de novo, resolve conflicts in evidence, or decide questions of credibility.” Bass , 499 F.3d at 509; Rogers , 486 F.3d at 247.
IV. ANALYSIS
Plaintiff raises two claims of error – first, that the ALJ failed to properly determine the effects of her hearing loss on her ability to work; and second, that the ALJ improperly omitted depression and gender identity disorder from the list of severe impairments at step two.
A.  The ALJ Properly Determined The Effects Of Plaintiff’s Hearing Loss On Her Ability To Work
Plaintiff argues that the ALJ failed to properly determine the effects of her hearing loss on her ability  to work. This Court disagrees and concludes that the ALJ’s determination that Plaintiff could return to work as a general laborer is supported by substantial evidence.
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The ALJ accommodated Plaintiff’s hearing problems by including limitations in the RFC including avoidance of concentrated exposure to excessive noise, communication at close range (presumably to accommodate her need to read lips), no interaction with the public, and only occasional interaction with co-workers. Moreover, ALJ Scallen accommodated the “buzzing” in Plaintiff’s ears which reportedly affected her concentration by limiting Plaintiff to jobs with “simple, routine, repetitive tasks . . .”
To support these limitations, the ALJ noted the April 8, 2009 consultative examination by ENT specialist Dr. Eugene Rontal, who observed no reports of tinnitus, aural discharge, or dizziness. The ALJ also noted that the examination revealed normal tympanic membranes and ear canals, and that an audiogram demonstrated moderate sensorineural hearing loss in both ears.  ALJ Scallen further noted that although a hearing aid brought the Plaintiff’s hearing  discrimination to 96% at 50dB, Plaintiff reported losing her hearing aids and has not replaced them.  The ALJ noted that a 2006 audiogram confirmed the same level of limitation.  These objective findings, the ALJ concluded, demonstrated that Plaintiff had a non-listing level hearing and discrimination limitation.
Plaintiff claims that it was error for the ALJ to consider a lack of treatment for her hearing loss; however, SSR 96-7p instructs that “the individual’s statements may be less credible if the level or frequency of treatment is inconsistent with the level of complaints.” See also Gwizdala v. Comm’r of Soc. Sec ., No. 98-1525, 1999 WL 777534, at *5 (6th Cir. Sept. 16, 1999) (ALJ may consider claimant’s refusal to adhere to medical recommendations, including the use of hearing aids).
Plaintiff also complains that the ALJ failed to consider evidence that she lacked the insurance
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to replace the allegedly stolen hearing aids. However, Plaintiff brings forth no evidence establishing that she could not have afforded replacement hearing aids through insurance or other means. On this point, this Court has recently concluded that it is proper for an ALJ to consider a claimant’s failure to seek emergency room treatment or low cost health care options. See Hashemi v. Comm’r of Soc. Sec. , No. 11-13629, 2012 WL 3759033, at  (E.D. Mich. Aug. 6 2012).
The ALJ also noted that Plaintiff sought no other treatment or monitoring for her hearing loss, even on an emergency basis, which suggests that her hearing loss was not as severe as alleged. Further, the ALJ noted that Plaintiff was able to effectively communicate by lip reading – and did so during the administrative hearing in this case – without the need for any kind of interpretative assistance.
Relatedly, Plaintiff claims that substantial evidence does not support the ALJ’s conclusion that she can return to work as a general laborer. Plaintiff argues that the RFC limitation that she “avoid concentrated exposure to excessive noise” coupled with her testimony at the hearing regarding the noise in the factory in which she worked, preclude a return to her prior work as a general laborer.
But Plaintiff’s argument has been rejected by the Sixth Circuit. In Studaway v. Sec’y of Health & Human Servs. , 815 F.2d 1074, 1076 (6th Cir. 1987),  the Sixth Circuit held that the Act requires that a plaintiff show his impairments are “so severe that he is ‘unable to do his previous work. . . .’” The Court specified: “[h]e must prove an inability to return to his former type of work and not just to his former job.” Id. (emphasis in original) (internal quotation marks omitted); accord Clendening v. Comm’r of Soc. Sec. , 482 F. App’x 93, *7 (6th Cir. 2012) (“The relevant inquiry is
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whether [the claimant] could still perform that type of work and not necessarily the specific job that he had in the past.”); see also Villa v. Heckler , 797 F.2d 794, 798 (9th Cir. 1986); Gray v. Heckler , 760 F.2d 369, 372 (1st Cir. 1985); De Loathe v. Heckler , 715 F.2d 148, 151 (4th Cir. 1983); Jock v. Harris , 651 F.2d 133, 135 (2d Cir. 1981). Because the VE testified that general laborer work existed at a level consistent with Plaintiff’s RFC, this Court is compelled to affirm. See Studaway , 815 F.2d at 1076.
B.  Severe Impairments
At step two the ALJ determined that Plaintiff had one severe impairment, deafness. (Tr. 24.) Plaintiff contends that the ALJ improperly omitted depression and gender identity disorder from the list of severe impairments. However, Plaintiff fails to recognize that once step two is “cleared” by finding that some severe impairment exists – in this case, deafness
- the ALJ must then consider a plaintiff’s “severe and nonsevere impairments in the remaining steps of the sequential analysis.” Anthony v. Astrue , 266 Fed. App’x 451, 457 (6th Cir. 2008) “The fact that some of [a plaintiff's] impairments were not deemed to be severe at step two is therefore legally irrelevant.” Id. Consequently, any alleged omission of Plaintiff’s depression and/or gender identity disorder from the list of severe impairments does not necessarily undermine the ALJ’s decision. See Anthony , 266 Fed. App’x at 457; Talos v. Comm’r of Soc. Sec ., No. 11-13207, 2012 WL 1392156, at *8 (E.D. Mich. Mar. 26, 2012); Maziarz v. Sec. of Health & Human Servs. , 837 F.2d 240, 244 (6th Cir. 1987).
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The Court has reviewed the ALJ’s decision and concludes that he properly considered Plaintiff’s depression and gender identity disorder in the remaining steps of the sequential analysis.
Specifically, the ALJ discussed Plaintiff’s mental health treatment during 1997 for depression and suicidal ideation.  Next, the ALJ discussed, in detail, Plaintiff’s emergency room visits during February and May 1998 after he attempted to remove his testicles. ALJ Scallen noted Plaintiff’s history of gender dysphoria, identifying as a transgender while seeking a sex change operation.  ALJ Scallen noted a break in treatment until August 2000, at which time Plaintiff presented to the emergency room exhibiting symptoms of depression regarding his sexual identity, but denied suicidal ideation.  ALJ Scallen noted Plaintiff’s return to the emergency room in February 2001 with suicidal ideation, but was discharged. ALJ Scallen also noted that Plaintiff worked for years with the noted conditions. And, importantly, ALJ Scallen identified no records of treatment for Plaintiff’s mental health conditions since the alleged onset date of disability.
This Court concludes that the ALJ properly considered Plaintiff’s mental health impairments and a failure to find that Plaintiff’s depression or gender identity disorder constituted a severe impairment at step two does not constitute reversible error.
V. CONCLUSION AND RECOMMENDATION
For the reasons set forth above, this Court finds substantial evidence supports the Commissioner’s decision. The Court therefore RECOMMENDS that Plaintiff’s Motion for Summary Judgment (Dkt. 12) be DENIED , that Defendant’s Motion for Summary Judgment.  The ALJ rated the severity of Plaintiff’s mental impairments and the RFC reflects the degree of limitation the ALJ found in the “paragraph B” mental function analysis.
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14) be GRANTED , and that, pursuant to 42 U.S.C. § 405(g), the decision of the Commissioner of Social Security be AFFIRMED .

s/Laurie J. Michelson
LAURIE J. MICHELSON
UNITED STATES MAGISTRATE JUDGE
Dated: March 12, 2013


                                            Even Man's-men May Turn Out To Be She-men

A former member of the elite U.S. Navy SEALs has come out to say she's now a woman.
Kristin Beck, formerly Chris, served 20 years as a SEAL and fought on some of the most dangerous battlefields in the world, but after she left the service she realized she wasn't living the life she wanted.
"Chris really wanted to be a girl and felt that she was a girl and consolidated that identity very early on in childhood," said Anne Speckhard, co-author of Beck's biography "Warrior Princess," which was published over the weekend of May 31 to June 2, 2013. Speckhard told ABC News Beck suppressed that secret for decades, however, through the trials of SEAL training and the harrowing missions that followed, growing a burly beard as she fought on the front lines of American special operations.
Brandon Webb, a former SEAL who served on a different SEAL team than Beck, said that Beck's reputation in the SEALs was a good one and said she was, by all appearances, the "consummate guy's guy."
But the book says that Chris "had considered living as the woman he felt himself to be for a very long time, but while he was serving as a SEAL he couldn't do it."
"For years Chris had turned off his sexuality like a light switch and lived as a warrior, consumed with the battle -- living basically asexual. For Chris the other SEALs were brothers and in the man's man warrior lifestyle, even if he had wanted to entertain sexual thoughts, there really was never any time to be thinking too much about sexuality," the book says.
After her retirement in 2011, however, "Now seemed the right time to go for it -- to make his body match his identity -- or at least start by dressing like a woman in his regular life."
Speckhard said Beck first announced her decision to friends online with the declaration "No more disguises" and the book describes her going out to gay bars in Florida as a woman.
Beck is currently on hormone therapy in preparation for sexual reassignment surgery and generally wears long hair, make-up and women's clothes, Speckhard said.
In the book's Preface, Beck said she wrote the book "to reach out to all of the younger generation and encourage you to live your life fully and to treat each other with compassion, be good to each other, especially in your own backyard (whether it be high school or your community)."

A Judge Who Cannot Say No

HUNTINGTON, W.Va.—Americans seeking Social Security disability benefits will often appeal to one of 1,500 judges who help administer the program, where the odds of winning are slightly better than even. Unless, that is, they come in front of David B. Daugherty.
[Judge_A1] The Herald-Dispatch
Judge David B. Daugherty
In the fiscal year that ended in September, the administrative law judge, who sits in the impoverished intersection of West Virginia, Kentucky and Ohio, decided 1,284 cases and awarded benefits in all but four. For the first six months of fiscal 2011, Mr. Daugherty approved payments in every one of his 729 decisions, according to the Social Security Administration.
The judge has maintained his near-perfect record despite years of complaints from other judges and staff members. They say he awards benefits too generously and takes cases from other judges without their permission.
Staffers in the Huntington office say he hears a disproportionate number of cases filed by one area attorney. Mr. Daugherty has been known to hold hearings for as many as 20 of this lawyer's clients spaced 15 minutes apart.
Mr. Daugherty is 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. 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.
This breakdown is one reason why Social Security Disability Insurance—one of the federal government's two disability programs—is under severe financial strain. It paid a record $124 billion in benefits in 2010 and is on track to become the first major entitlement program to go bust. Government officials said last week it is expected to run out of money in 2018.

Social Security Disability Awards

JUDGEThe U.S. program's tribulations come as other countries are trying to limit the costs of their disability programs. In the U.K., officials have proposed requiring routine re-evaluations of people with disabilities to see if their conditions have changed. Australia has proposed that some beneficiaries participate in job-training programs, with the goal of eventually moving them off government support.
American applicants for disability benefits must first seek approval from state officials, who play a lead role in an initial review. Applicants twice denied can then appeal to one of the Social Security Administration's administrative law judges. The judges are appointed by the federal agency after a competitive exam and screening process.
Hearings, which aren't open to the public because of medical-privacy rules, typically last an hour and include either the judge or the applicant's attorney questioning the petitioner. Medical or employment experts can testify, too. Judges consider an applicant's health, age, education and job prospects before making a legally binding decision.
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.
Mr. Daugherty, 75 years old, processes more cases than all but three judges in the U.S. He has 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.
[judgeconn] Damian Paletta
Judges and local attorneys have complained about the volume of disability cases brought before Judge Daugherty by one lawyer, Eric C. Conn.

Mr. Daugherty, in a written response to questions about the comment, said such a phrase is "more or less a standing joke" among disability-benefit review offices around the country. "No more, no less."
He said every decision he makes "is fully supported by relevant medical reports and physical and/or mental residual functionary capacity assessments from treating or examining doctors or other medical professionals."
When asked about Mr. Daugherty, Social Security Administration Commissioner Michael Astrue said in an interview there were several "outliers" among administrative law judges, but that he has no power to intervene because their independence is protected by federal law. Their appointments are lifetime.
"We mostly have a very productive judiciary that makes high-quality decisions, and we've got some outliers and we've done what we can," said Mr. Astrue. "Our hands are tied on some of the more extreme cases."
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," Mr. Astrue said.
Following inquiries from The Wall Street Journal, the Social Security Administration's inspector general's office launched an investigation into Mr. Daugherty's approval rate, according to several people briefed on the matter. Mr. Daugherty said he isn't aware of any investigation.
JudgeNEW
Judge Daugherty, left, an active member of the Huntington, W. Va., community, performed in a recent play.
Social Security, with an $800 billion annual budget, is one of the government's largest expenses, and is best known for sending monthly payments to retired Americans. But it also pays disability claims for 18 million people each year, with numbers pushed higher because of the recent recession. The federal government runs two separate programs to assist people unable to work because of a debilitating mental or physical disability.
For some, applying for benefits can be an agonizing process that takes more than two years. Benefits are modest—they can run around $1,000 a month—but come with access to government-run health plans Medicare and Medicaid. Analysts estimate the total package costs $300,000 over a beneficiary's lifetime.
To clear the backlog of cases, the Social Security Administration in 2008 pushed judges to move between 500 and 700 cases a year, something less than half of judges were managing at the time, according to Mr. Astrue, the commissioner. To compensate, judges began making many decisions "on the record," which means they grant benefits to applicants without meeting them, hearing testimony or asking questions, according to several judges. This has been a favorite approach for Mr. Daugherty, people who have worked with him say.
Mr. Daugherty doesn't dispute the characterization, and said in these circumstances he weighs "the evidence in the same manner as in cases requiring a hearing." He said the process "saves the agency a great deal of money and work hours."
The Social Security Administration "cares only about number of resolutions; quality is no longer a serious concern," James S. Bukes, a Pittsburgh administrative law judge, wrote in a recent letter to the House subcommittee that oversees Social Security. Mr. Bukes, who approved 46% of disability applicants through the first half of this fiscal year, said the system "wastes millions of dollars by granting claims that are not meritorious."
Mr. Daugherty became a Social Security judge in 1990 after serving as an elected Cabell County circuit court judge during he 1970s and 1980s. Born and raised in Huntington, he introduces himself as "D.B.," according to program notes for a recent local production of "Titanic: The Musical," in which Mr. Daugherty played John Jacob Astor. He's also a devotee of karaoke.
"He is a very, very well respected man in the community," said Nancy Cartmill, president of the Cabell County Commission. "He's been there for years."
In 2005, he reached 955 decisions, approving benefits in 90% of the cases. From 2006 through 2008, he decided 3,645 cases, approving benefits roughly 95% of the time. Last year, at 99.7%, he had one of the highest award rates in the country, and is on pace to award even more benefits in 2011, according to agency statistics.
As Mr. Daugherty's numbers rose, judges, staff and local attorneys began complaining about the volume of cases brought before the judge by one Kentucky lawyer.
The lawyer, Eric C. Conn, runs his Social Security practice out of a collection of connected mobile homes in Stanville, Ky., where he erected a giant statue of Abraham Lincoln in the parking lot. His smiling face adorns billboards up and down U.S. Highway 23, and his slogan is "he gets the job done." Mr. Conn hired Mr. Tinsley, the former Huntington judge, and promotes him on local billboards, too. Mr. Conn often brings an inflatable replica of himself to events. His website address is mrsocialsecurity.com.
Judges and staff in the Huntington office have complained to supervisors that Mr. Daugherty assigns himself Mr. Conn's cases, including some that were assigned to other judges, two former judges and several staff said. Cases are supposed to be assigned randomly.
According to a court schedule of Mr. Daugherty's day reviewed by The Wall Street Journal dated Feb. 22, 2006, Mr. Daugherty held 20 hearings spaced 15 minutes apart for Mr. Conn and his clients in a Prestonsburg, Ky., field office. Such days can be a bonanza for lawyers: The average fee for one approval is between $3,000 and $3,500 and can go as high as $6,000.
"The Conn situation was something we really harped on," said Jennifer Griffith, a master docket clerk in the office until she left in late 2007. "We made sure management knew about it. We gave them every chance to come up with some sort of logical explanation or to get it to stop, and that never happened."
Mr. Daugherty said he prefers a crammed timetable because he is dyslexic and must fit all of his hearings within four or five days each month because he "simply cannot spend that much time in the courtroom."
Holding hearings within just a few days "allows me sufficient time to review and prepare for hearings, resulting in full and complete knowledge of the documents in the case prior to hearing," he added.
Huntington's chief administrative judge, Charlie Andrus, said he was notified on four occasions of Mr. Daugherty either taking cases assigned to other judges or taking unassigned cases. Mr. Andrus said he issued a written directive on April 29 that "no case was to be reassigned between judges by anyone unless I gave specific permission."
Mr. Daugherty said he believed judges could take cases "so long as no other [administrative law judge] had seen or reviewed the file." He said he was "recently reminded that that is no longer true and I promptly returned the cases to the original assignees."
Stephen Sammons, 37, of Mavisdale, Va., said he injured his neck and back in a truck accident in 2001. He continued working until 2008 when the pain became unbearable, he said. He quit his job and filed for disability benefits.
Several doctors authorized by the Social Security Administration to look at his injuries disputed his claim that his condition was caused by the accident. He retained Mr. Conn, and the case ended up before Huntington judge Toby J. Buel Sr., who rejected the claim in February 2010.
Mr. Conn resubmitted Mr. Sammons' claim, and Mr. Sammons said he was surprised when Mr. Conn's office called and said he wouldn't have to appear before the judge and would only have to see a doctor, selected by Mr. Conn. The new medical records were filed to Mr. Daugherty, who approved the case without Mr. Sammons having to appear.
Mr. Daugherty declined to comment on the case.
A possible connection between Messrs. Daugherty and Conn is a subject of the inspector general's investigation, according to two people familiar with the probe. Neither Messrs. Conn or Daugherty have been accused of wrongdoing. Mr. Daugherty said he has "absolutely not" received anything of value from Mr. Conn or his associates for processing the lawyer's cases. He said he has denied a "goodly number" of Mr. Conn's cases over the years, though he couldn't provide a specific figure.
Mr. Conn declined multiple interview requests, and didn't respond specifically to written questions. In a statement, he said he had "not been contacted by any one indicating any investigation being conducted."
He added: "I have tried very hard in my 18 years of being a lawyer to represent my clients and the profession honestly and ethically seeking results based on the merits of my client's cases and the results that come from hard work and not from any improper conduct."
Some former judges and staff said one reason Mr. 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.
Dan Kemper, who began working as a judge in the Huntington office with Mr. Daugherty in 1990, said the Social Security agency's management refused to intervene because of the numbers Mr. Daugherty delivered for the office. He said he complained for years about the number of cases Mr. Daugherty approved without interviewing applicants. Mr. Kemper, who was known in the area as "Denying Dan" for his relatively strict approach, retired in 2007 because he felt the system was unfair.
"The only way you could really get that many cases out was to grant them all, because it was so much easier," Mr. Kemper said.
In late April, the Huntington office held 50 of Mr. Daugherty's cases—all approvals for Mr. Conn's clients—so they could be processed in May, because the office had already hit their monthly goal, people familiar with the matter said. Those applicants will have to wait an additional month to receive benefits. Mr. Conn, who receives a percentage of the back pay owed to his clients, will collect more fees because of the delay. The Huntington office will get a head start on the next month's target.
Mr. Daugherty said cases are held to space out his approvals, which he attributed to "the 'numbers game' that most, if not all, federal agencies are subject to."
Mr. Andrus said cases weren't held to meet monthly numbers. He said Mr. Daugherty's cases can be held because other applicants might have been waiting longer for benefits and those cases might take priority.
In a brief telephone interview in April, Mr. Daugherty blamed high poverty rates especially in Eastern Kentucky for his large case load and high approval rate.
"People would really be surprised at how little education those people have," he said. "If they have a fourth-grade education, they couldn't get a job if their lives depended on it."
Written by Damian Paletta, WSJ, at damian.paletta@wsj.com

Friday, May 24, 2013

Witnesses At ALJHearing Can Testify By Telephone, Rules Change

4191-02U
SOCIAL SECURITY ADMINISTRATION
[Docket No. SSA 2007-0044]
20 CFR Parts 404, 405, and 416
RIN 0960-AH40
Rules on Determining Hearing Appearances
AGENCY: Social Security Administration.
ACTION: Final rule.
SUMMARY: This final rule is another step
in our continual efforts to handle workloads
more effectively and efficiently. We are publis
hing final rules for portions of the rules we
proposed in October 2007 that relate to pers
ons, other than the cl
aimant or any other
party to the hearing, appearing by tele
phone. We are also clarifying that the
administrative law judge (ALJ) will allow the cl
aimant or any other pa
rty to a hearing to
appear by telephone under cert
ain circumstances when the claimant or other party
requests to make his or her appearance in that
manner. We expect that these final rules
will make the hearings process more efficient and help us continue to reduce the hearings
backlog. In addition, we made some minor edito
rial changes to our regulations that do not
have any effect on the rights of
claimants or any other parties.
DATES: This rule is effective
[INSERT DATE 30 DAYS AFTER DATE OF
PUBLICATION IN THE FEDERAL
REGISTER
].
2
FOR FURTHER INFORMATION CONTACT:
Brent Hillman, Social Security
Administration, 5107 Leesburg Pike, Falls
Church, VA 22041-3260, (703) 605-8280 for
information about this notice. For information
on eligibility or filing
for benefits, call our
national toll-free number,
1-800-772-1213 or TTY 1-800-325-0778, or visit our Internet
site, Social Security Online, at
http://www.socialsecurity.gov
.
SUPPLEMENTARY INFORMATION:
Background
As part of our ongoing commitment to
improve the way we process claims for
benefits under the old age, survivors, and
disability insurance pr
ograms under title II of
the Social Security Act (Act) and the supplem
ental security income (SSI) program under
title XVI of the Act, we are revising some of
the procedures we follow at the ALJ hearing
level. To address recent court cases, we are
making final the rules that allow the ALJ to
determine that a person other than the claima
nt or any other part
y to the hearing may
appear at the hearing by telephone
. In a recent Federal case, a District Court Judge held
that we could not take a me
dical expert’s testimony by tele
phone without pr
ior notice to
the claimant, and over the claimant’s objecti
ons, unless we amended our regulations to
allow witnesses to appear by telephone.
Edwards
v.
Astrue
, No. 3:10cv1017, 2011 WL
3490024 (D. Conn. Aug. 10, 2011). Other courts ha
ve made similar rulings. These final
rules address concerns raised in
Edwards
and other cases.
3
We proposed these changes in a noti
ce of proposed rulemaking (NPRM) we
published in the Federal Register
on October 29, 2007 (72 FR 61218). The preamble to
the NPRM discussed the changes from the
current rules and our reasons for proposing
those changes.
1
We also have made changes to these final rules to make them consistent
with final rules we published in the Federal Register
on December 18, 2008 (73 FR
76940)
2
and July 8, 2010 (75 FR 39154).
3
Appearing at the ALJ hearing by telephone
Our final rules provide that the ALJ will
determine how any person other than the
claimant or any other party to
the hearing will appear at th
e hearing, whether in person,
by video teleconferencing, or by telephone. If
the ALJ determines that any person will
appear at the hearing by telephone, the ALJ w
ill notify the claimant and any other party
to the hearing in advance of the hearing. If th
e claimant or any other party to the hearing
objects to any other person a
ppearing by video teleconferen
cing or by telephone, the ALJ
will decide how that person will appear. Our fina
l rules also clarify that the claimant or
any other party to the hearing may request to
appear at the hear
ing by telephone. The
ALJ will allow the claimant or other party to
appear by telephone if the ALJ determines
that extraordinary circumstances exist which
prevent the claimant or other party from
appearing in person or by vi
deo teleconferencing.
1
The NPRM is available at:
http://www.gpo.gov/fdsys/pkg/FR-2007-10-29/pdf/E7-20690.pdf
2
The final rules are available at:
http://www.gpo.gov/fdsys/pkg/FR-2008-12-18/pdf/E8-30056.pdf
3
The final rules are available at:
http://www.gpo.gov/fdsys/pkg/FR-2010-07-08/pdf/2010-16549.pdf
4
Other provisions from the NPRM
At this time, we are not proceeding with
the other proposed rules in the October
2007 NPRM.
Public Comments on the NPRM
On October 29, 2007, we published an
NPRM in the Federal Register
at 72 FR
61218 and provided a 60-day comment peri
od, which ended on December 28, 2007. We
received 111 public comments on telephone tes
timony. Nine of the comments related to
testimony provided by telephone by someone other
than the claimant or any other party
to the hearing.
Comment
: Several commenters suggested
that telephone appearances by
witnesses would impede the claimant’s ability
to adequately examine, observe and be
observed by, or question expert
s and other witnesses. Regard
ing expert witnesses, one
commenter believed that an expert testifyi
ng via telephone would need to provide the
underlying documentation for his or her testim
ony at the hearing, and suggested that, if
requested, the expert witnesses could be ob
ligated to fax such documentation to the
claimant or representative. Ot
her commenters expressed concer
n that it would be difficult
for claimants or representatives to verify
the qualifications or i
nvestigate disciplinary
problems relating to expert witnesses testif
ying via telephone. Another commenter said
that an appearance of bias is
introduced when experts from
one area of the
country testify
5
via telephone in cases located
in another area of the c
ountry. With respect to lay
witnesses, one commenter believed the proposed
rule needed additiona
l clarity to convey
that ALJs could not use it to prevent the clai
mant from calling other witnesses to testify
on his or her behalf.
Response
: We disagree with the concerns
raised in this comment. Under these
final rules, the claimant can object to a w
itness appearing by tele
phone, and the ALJ has
discretion to determine that
the appearance of any witness
be conducted in person. Thus,
to the extent that circumstances could arise in
which it would be advisable to schedule an
in-person appearance by a
witness even though a telephon
ic appearance would be
possible, the ALJ may schedule such an appearance.
All claimants or representatives are
entitled to conduct questioning and cross-
examination as needed to inquire fully into th
e matters at issue. If witnesses appear by
telephone, we will continue to provide the clai
mant and any other party to the hearing the
same right to question and cross-examine w
itnesses, as well as access to the hearing
record.
In addition, the final rule
s do not change the standard
procedures we use when
medical experts (MEs) and vocational experts
(VEs) testify. Before MEs and VEs testify
as impartial witnesses at the hearing, ALJs mu
st “qualify” them by eliciting information
including, but not limited to, impartiality,
expertise, and professional qualifications.
Furthermore, MEs and VEs will continue to s
ubmit their professional qualifications into
6
the written record. The claimant and any othe
r party to the hearing will have the same
access to this information if the ME or
VE is appearing in person, by video
teleconferencing, or by telephone. ME and
VE testimony is based on the evidence
entered into the record and not on any exam
ination or personal evaluation of the
claimant. Thus, a claimant or representative
will have a complete
opportunity to confront
and examine an expert witness on qualific
ations or adverse te
stimony regarding the
matters that are important with respect to
expert testimony -- i.e.,
the expertise of the
witness and the accuracy of his or her test
imony. In addition, the claimant and any other
party to the hearing retain th
e right to object to a witness
based on bias or qualifications.
REGULATORY PROCEDURES
Executive Order 12866 as supplemented by Executive Order 13563
We consulted with the Office of Management and Budget (OMB) and determined
that these final rules meet the requireme
nts for a significant regulatory action under
Executive Order 12866 as supplemented by Executive Order 13563. Thus, OMB
reviewed these final rules.
Regulatory Flexibility Act
We certify that these final rules will
not have a significant economic impact on a
substantial number of small entities because
they only affect indivi
duals. Accordingly, a
7
regulatory flexibility analysis as provided in
the Regulatory Flexibility Act, as amended,
is not required.
Paperwork Reduction Act
These final rules contain public reporting requi
rements in the regulation sections listed
below, which we did not previously clear
through an existing Information Collection
Request.
Regulation
Section
Description
of Public
Reporting
Requirement
Number of
Respondents
(annually)
Frequency
of
Response
Average
Burden
Per
Response
(minutes)
Estimated
Annual
Burden
(hours)
404.936(c)(1);
404.938(b);
405.315(c)(1);
416.1436(c)(1);
416.1438(b)
You or any other
party may
request to appear
at the hearing by
telephone; ALJ
will allow
telephone
hearing when
extraordinary
circumstances
prevent
appearance in
person or by
video
teleconference
1,000 1 30 500
SSA submitted an Information Collection Request for clearance to OMB. We are
soliciting comments on the burden estimate; the
need for the information; its practical
utility; ways to enhance its qua
lity, utility, and clarity; and wa
ys to minimize the burden
on respondents, including the use of automated techniques or other forms of information
technology. If you would like to submit commen
ts, please send them to the following
locations:
Office of Management and Budget
Attn: Desk Officer for SSA
Fax Number: 202-395-6974
8
E-mail address: OIRA_Submission@omb.eop.gov
Social Security Administration
Attn: Reports Clearance Officer
1333 Annex
6401 Security Blvd
Baltimore, MD 21235-0001
Fax Number: 410-965-6400
E-mail: OR.Reports.Clearance@ssa.gov
You can submit comments until (
INSERT DATE 30 DAYS AFTER DATE OF
PUBLICATION IN THE FEDERAL REGISTER
), which is 30 days after the
publication of this notice.
To receive a copy of the OMB
clearance package, contact the
SSA Reports Clearance Officer us
ing any of the above contact methods. We prefer to
receive comments by email or fax.
(Catalog of Federal Domestic Assistance
Program Nos. 96.001, Social Security –
Disability Insurance; 96.002, Social Securi
ty – Retirement Insurance; 96.004, Social
Security – Survivors Insurance; a
nd 96.006, Supplemental Security Income)
List of Subjects
20 CFR Part 404
Administrative practice a
nd procedure; Blind; Disability benefits; Old-Age,
Survivors, and Disability Insurance; Repor
ting and recordkeeping requirements; Social
Security.
20 CFR Part 405
Administrative practice a
nd procedure; Blind, Disability benefits; Old-Age,
Survivors, and Disability Insurance;
Public assistance programs; Reporting and
recordkeeping requirements; Social Securi
ty; Supplemental Security Income (SSI).
20 CFR Part 416
9
Administrative practice a
nd procedure; Aged, Blind, Disability benefits, Public
Assistance programs; Reporting
and recordkeeping requirement
s; Supplemental Security
Income (SSI).
Dated: May 9, 2013.
_______________________________
Carolyn W. Colvin,
Acting Commissioner of Social Security.
10
For the reasons set out in the preamble
, we are amending 20 CFR chapter III parts
404, 405, and part 416 as set forth below:
Part 404—FEDERAL OLD-AGE, SURVIV
ORS AND DISABILITY INSURANCE
(1950- )
Subpart J – [Amended]
1. The authority citation for subpart J of
part 404 continues to read as follows
Authority: Secs. 201(j), 204(
f), 205(a)–(b), (d)–(h), a
nd (j), 221, 223(i), 225, and
702(a)(5) of the Social Security Act (42 U.S.
C. 401(j), 404(f), 405(a)–(b), (d)–(h), and
(j), 421, 423(i), 425, and 902(a)(5)); sec.
5, Pub. L. 97–455, 96 Stat. 2500 (42 U.S.C. 405
note); secs. 5, 6(c)–(e), and 15, Pub. L. 98–460,
98 Stat. 1802 (42 U.S.C. 421 note); sec.
202, Pub. L. 108–203, 118 Stat. 509 (42 U.S.C. 902 note).
2. In §404.936, revise the reference to “par
agraph (c)” in the first sentence of
paragraph (h) to “paragraph (c
)(1)” and revise paragraph
(c) to read as follows:
§404.936 Time and place for a hearing before an administrative law judge.
* * * * *
(c) Determining how appearances will be made.
In setting the time and place of
the hearing, we will consider the following:
11
(1) We will consult with the administra
tive law judge to determine the status of
case preparation and to determine whether
your appearance, or the appearance of any
other party to the hearing, will be made in
person or by video teleconferencing. The
administrative law judge will determine that
your appearance, or the appearance of any
other party to the hearing, be conducte
d by video teleconferencing if video
teleconferencing equipment is
available to conduct the
appearance, use of video
teleconferencing to conduct th
e appearance would be more
efficient than conducting the
appearance in person, and the administrative
law judge determines that there is no
circumstance in the particular case that pr
events the use of video teleconferencing to
conduct the appearance. You or
any other party to the hearin
g may request to appear at
the hearing by telephone. The administrative
law judge will allow you or any other party
to the hearing to appear by
telephone if the administrative law judge determines that
extraordinary circumstances prevent you or th
e other party who makes the request from
appearing at the hearing in pers
on or by video teleconferencing.
(2) The administrative law
judge will determine whether any person other than
you or any other party to the hearing, includ
ing a medical expert or
a vocational expert,
will appear at the hearing in person, by vide
o teleconferencing, or by telephone. If you or
any other party to the he
aring objects to any other person appearing by video
teleconferencing or by telephone, the administ
rative law judge will decide, either in
writing or at the hearing, whether to have
that person appear in person, by video
teleconferencing, or by telephone. The admini
strative law judge will direct a person,
other than you or any other party to the
hearing if we are notified as provided in
paragraph (e) of this section that you or
any other party to th
e hearing objects to
12
appearing by video teleconferencing, to a
ppear by video telec
onferencing or telephone
when the administrative
law judge determines:
(i) Video teleconferencing or te
lephone equipment is available;
(ii) Use of video teleconferencing
or telephone equipment would be more
efficient than conducting an examination of a witness in person, and;
(iii) The ALJ determines there is no ot
her reason why video teleconferencing or
telephone should not be used.
* * * * *
3. In §404.938, revise paragraph
(b) to read as follows:
§404.938 Notice of a hearing before
an administrative law judge.
* * * * *
(b) Notice information.
The notice of hearing will contain a statement of the
specific issues to be decide
d and tell you that you may desi
gnate a person
to represent
you during the proceedings. The notice will
also contain an explanation of the
procedures for requesting a change in the time
or place of your hearing, a reminder that if
you fail to appear at your scheduled heari
ng without good cause the
administrative law
judge may dismiss your hearing request, and
other information about the scheduling and
conduct of your hearing. You will also be told
if your appearance or that of any other
person is scheduled to be made in pers
on, by video teleconferencing, or, for a person
other than you or any other party to the he
aring, by telephone. If we have scheduled you
to appear at the hearing by
video teleconferencing, the notic
e of hearing will tell you that
the scheduled place for the hearing is a video
teleconferencing site and explain what it
means to appear at your hearing by video te
leconferencing. The notic
e will also tell you
13
how you may let us know if you do not want
to appear by video teleconferencing and
want, instead, to have your hearing at a
time and place where you may appear in person
before the administrative law judge. The noti
ce will also tell you that you may ask us if
you want to appear by telephone, and that th
e administrative law judge will grant your
request if he or she determines that ex
traordinary circumstances prevent you from
appearing in person or by
video teleconferencing.
* * * * *
4. In §404.950, revise paragraphs (a
) and (e) to read as follows:
§404.950 Presenting evidence at a hearing
before an administrative law judge
(a) The right to appear and present evidence.
Any party to a hear
ing has a right to
appear before the administrative law judge, ei
ther in person, or, when the conditions in
§404.936(c)(1) exist, by video tel
econferencing or telephone, to
present evidence and to
state his or her position. A party may also
make his or her appearance by means of a
designated representative, who may make
the appearance in person, or, when the
conditions in §404.936(c)(1) exist, by
video teleconferen
cing or telephone.
* * * * *
(e) Witnesses at a hearing.
Witnesses may appear at a hearing in person or, when the
conditions in §404.936(c)(2) exist, by video
teleconferencing or
telephone. They will
testify under oath or affirmation unless the ad
ministrative law judge finds an important
reason to excuse them from taking an oath
or affirmation. The administrative law judge
may ask the witness any questions material to
the issues and will allow the parties or their
designated representatives to do so.
* * * * *
14
Part 405 – ADMINISTRATIVE REVIEW
PROCESS FOR ADJUDICATING INITIAL
DISABILITY CLAIMS
5. The authority citation for part
405 continues to read as follows:
Authority: Secs. 201(j), 205(
a)-(b), (d)-(h), and (s),
221, 223(a)-(b), 702(a)(5),
1601, 1602, 1631, and 1633 of the Social Security
Act (42 U.S.C. 401(j), 405(a)-(b), (d)-
(h), and (s), 421, 423(a)-(b), 902(a)(5), 1381, 1381a, 1383, and 1383b).
6. In §405.315, revise paragraph
(c) to read as follows:
§ 405.315 Time and place for a hearing before an administrative law judge.
* * * * *
(c) Determining how appearances will be made
.
In setting the time and place of
the hearing, we will consider the following:
(1) The administrative law judge will determine whether your appearance will be
made in person or by video teleconferencing. The administrative law judge will
determine that your appearance be conduc
ted by video teleconferencing if video
teleconferencing equipment is
available to conduct the
appearance, use of video
teleconferencing to conduct th
e appearance would be more
efficient than conducting the
appearance in person, and the administrative
law judge determines that there is no
circumstance in the particular case that pr
events the use of video teleconferencing to
conduct the appearance. If you
object to appearing personall
y by video teleconferencing,
we will re-schedule the hear
ing to a time and place at which you may appear in person
before the administrative law judge. You ma
y request to appear at the hearing by
telephone. The administrative law judge w
ill allow you to appear by telephone if the
15
administrative law judge determines that ex
traordinary circumstances prevent you from
appearing at the hearing in pe
rson or by video teleconferencing.
(2) The administrative law
judge will determine whether any person other than
you, including a medical expert or a vocationa
l expert, will appear
at the hearing in
person, by video teleconferencing, or by tele
phone. If you object to any other person
appearing by video teleconferencing or te
lephone, the administrative law judge will
decide, either in writing or at
the hearing, whether to have
that person appear in person,
by video teleconferencing, or by telephone. Th
e administrative law judge will direct a
person, other than you if you object to your
appearing by video teleconferencing as
provided in paragraph (c)(1) of
this section, to appear
by video teleconferencing or
telephone when the administra
tive law judge determines:
(i) Video teleconferencing or te
lephone equipment is available,
(ii) Use of video teleconferencing
or telephone equipment would be more
efficient than conducting an examination of a witness in person, and
(iii) The administrative la
w judge determines that th
ere is no other reason why
video teleconferencing or te
lephone should not be used.
Part 416 – SUPPLEMENTAL SECURITY IN
COME FOR THE AGED, BLIND, AND
DISABLED
Subpart N - [Amended]
7. The authority citation for subpart N of
part 416 continues to read as follows
Authority: Secs. 702(a)(5), 1631, and 1633 of
the Social Security Act (42 U.S.C.
902(a)(5), 1383, and 1383b); sec. 202, Pub.
L. 108-203, 118 Stat. 509 (42 U.S.C. 902
note).
16
8. In §416.1436, revise the reference in para
graph (h) from the “first sentence of
paragraph (c)” to the “first se
ntence of paragraph (c)(1)” and
revise paragraph (c) to read
as follows:
§416.1436 Time and place for a hearing before an administrative law judge.
* * * * *
(c) Determination how appearances will be made.
In setting the time and place of
the hearing, we will consider the following:
(1) We will consult with the administra
tive law judge to determine the status of
case preparation and to determine whether
your appearance, or the appearance of any
other party to the hearing, will be made in
person or by video teleconferencing. The
administrative law judge will determine that
your appearance, or the appearance of any
other party to the hearing, be conducte
d by video teleconferencing if video
teleconferencing equipment is
available to conduct the
appearance, use of video
teleconferencing to conduct th
e appearance would be more
efficient than conducting the
appearance in person, and the administra
tive law judge determines there is no
circumstance in the particular case that pr
events the use of video teleconferencing to
conduct the appearance. You or
any other party to the hearin
g may request to appear at
the hearing by telephone. The administrative
law judge will allow you or any other party
to the hearing to appear by
telephone if the administrative law judge determines that
extraordinary circumstances prevent you or th
e other party who makes the request from
appearing at your hearing in pe
rson or by video teleconferencing.
(2) The administrative law
judge will determine whether any person, other than
you or any other party to the hearing, includ
ing a medical expert or
a vocational expert,
17
will appear at the hearing in person, by vide
o teleconferencing, or by telephone. If you or
any other party to the he
aring objects to any other person appearing by video
teleconferencing or by telephone, the administ
rative law judge will decide, either in
writing or at the hearing, whether to have
that person appear in person, by video
teleconferencing, or by telephone. The admini
strative law judge will direct a person,
other than you or any other party to the
hearing if we are notified as provided in
paragraph (e) of this section that you or
any other party to th
e hearing objects to
appearing by video teleconferencing, to a
ppear by video telec
onferencing or telephone
when the administrative
law judge determines:
(i) Video teleconferencing or te
lephone equipment is available,
(ii) Use of video teleconferencing
or telephone equipment would be more
efficient than conducting an examination of a witness in person, and
(iii) The administrative la
w judge determines there is no other reason why video
teleconferencing or telep
hone should not be used.
* * * * *
9. In §416.1438, revise paragraph (b) to read as follows:
§416.1438 Notice of a hearing before
an administrative law judge.
* * * * *
(b) Notice information.
The notice of hearing will contain a statement of the
specific issues to be decide
d and tell you that you may desi
gnate a person
to represent
you during the proceedings. The notice will
also contain an explanation of the
procedures for requesting a change in the time
or place of your hearing, a reminder that if
you fail to appear at your scheduled heari
ng without good cause the administrative law
18
judge may dismiss your hearing request, and
other information about the scheduling and
conduct of your hearing. You will also be told
if your appearance or that of any other
person is scheduled to be made in pers
on, by video teleconferencing, or, for a person
other than you or any other party to the he
aring, by telephone. If we have scheduled you
to appear at the hearing by
video teleconferencing, the notic
e of hearing will tell you the
scheduled place for the hearing is a video tel
econferencing site and explain what it means
to appear at your hearing by video telec
onferencing. The notice
will also tell you how
you may let us know if you do not want to ap
pear by video telec
onferencing and want,
instead, to have your hearing at a time and
place where you may appear in person before
the administrative law judge. The notice will
also tell you that you may ask us if you
want to appear by telephone, and that the ad
ministrative law judge will grant your request
if he or she determines that extraordinar
y circumstances prevent you from appearing in
person or by video teleconferencing.
* * * * *
10. In §416.1450, revise paragraphs (a)
and (e) to read as follows:
§416.1450 Presenting evidence at a hearing
before an administrative law judge
(a) The right to appear and present evidence.
Any party to a hear
ing has a right to
appear before the administrative law judge, ei
ther in person, or, when the conditions in
§416.1436(c)(1) exist, by video te
leconferencing or telephone, to
present evidence and to
state his or her position. A party may also
make his or her appearance by means of a
designated representative, who may make
the appearance in person, or, when the
conditions in §416.1436(c)(1) exist, by vi
deo teleconferenci
ng or telephone.
* * * * *
19
(e) Witnesses at a hearing.
Witnesses may appear at a hearing in person or, when
the conditions in §416.1436(c)(2
) exist, by video teleconf
erencing or telephone. They
will testify under oath or affirmation unle
ss the administrative law judge finds an
important reason to excuse them from taking
an oath or affirmation. The administrative
law judge may ask the witness any questions
material to the issues and will allow the
parties or their designated
representatives to do so.
* * * * *
[FR Doc. 2013-11932 Filed 05/20/2013 at
8:45 am; Publication Date: 05/21/2013