SSA Judges Tell Lawmakers They Are Pressured To Pay Down The Back-log

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

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

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

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

There is a practice called “Paying Down The Back Log”. This is where a judge just reverses every case on his docket and grants benefits to the claimant. Some ALJs have been known to do this with no regard at all for the merits of the case. Judges have been known to pay 200 cases or more on-the –record in this manner. Sometimes the Commissioner will take action to stop them. Other times he does not. (Steverson, Judge London, socialNsecurity, p. 19)
http://www.amazon.com/Judge-London-Steverson/e/B006WQKFJM

(AP)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

                      (AALJ President Randy Frye and Marilyn Zahm)

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

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

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

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

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

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

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

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

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

Several current and former Administrative Law Judges (“ALJs”) testified before Congress that the Social Security Administration is purportedly pushing ALJs to award benefits (or grant benefits) in an effort to reduce the rather large backlog of disability claims in the system. This further feeds the misperception that ALJs are approving claims willy-nilly left and right. Just as there are Judges who have high approval rates or grant rates (the percentage of claims approved out of all claims disposed), there are Judges who have extremely low grant rates and deny the vast majority of claims that they decide.

Nick A. Ortiz, Esq. crunched the data from all Social Security disability claims decided in Fiscal Year 2012. The data was found here: http://www.socialsecurity.gov/appeals/DataSets/Archive/archive_data_reports.html. [Update: the raw, unedited data can be found here in the archives for 2012: http://www.ssa.gov/appeals/DataSets/archive/archive_data_reports.html#ht=1].

 http://www.nickortizlaw.com/the-50-social-security-administrative-law-judges-with-the-worst-grant-rates-in-2012/

Silence Is Not Golden Anymore

On Monday, in a case called Salinas v. Texas the Supreme Court held that you remain silent at your peril. The court said that this is true even before you’re arrested, when the police are just informally asking questions. The court’s move to cut off the right to remain silent is wrong and also dangerous — because it encourages the kind of high-pressure questioning that can elicit false confessions.
This case has not gotten the attention it deserves.  Here are the facts from Salinas: Two brothers were shot at home in Houston. There were no witnesses — only shotgun shell casings left at the scene. Genovevo Salinas had been at a party at that house the night before the shooting, and police invited him down to the station, where they talked for an hour. They did not arrest him or read him his Miranda warnings. Salinas agreed to give the police his shotgun for testing. Then the cops asked whether the gun would match the shells from the scene of the murder. According to the police, Salinas stopped talking, shuffled his feet, bit his lip, and started to tighten up.
At trial, Salinas did not testify, but prosecutors described his reportedly uncomfortable reaction to the question about his shotgun. Salinas argued this violated his Fifth Amendment rights: He had remained silent, and the Supreme Court had previously made clear that prosecutors can’t bring up a defendant’s refusal to answer the state’s questions. This time around, however, Justice Samuel Alito blithely responded that Salinas was “free to leave” and did not assert his right to remain silent. He was silent. But somehow, without a lawyer, and without being told his rights, he should have affirmatively “invoked” his right to not answer questions. Two other justices signed on to Alito’s opinion. Justice Clarence Thomas and Justice Antonin Scalia joined the judgment, but for a different reason; they think Salinas had no rights at all to invoke before his arrest (they also object to Miranda itself). The upshot is another terrible Roberts Court ruling on confessions.
 In 2010 the court held that a suspect did not sufficiently invoke the right to remain silent when he stubbornly refused to talk, after receiving his Miranda warnings, during two hours of questioning. Now people have to somehow invoke the right to remain silent even when they’re not formal suspects and they haven’t been heard the Miranda warnings. As Orin Kerr points out on the Volokh Conspiracy, this just isn’t realistic.

The court’s ruling in Salinas is all the more troubling because during such informal, undocumented, and unregulated questioning, there are special dangers that police may, intentionally or not, coax false confessions from innocent suspects. I have spent years studying cases of people exonerated by DNA testing. A large group of those innocent people falsely confessed — and many supposedly admitted their guilt even before any formal interrogation. The Supreme Court’s decision in Salinas encourages loosey-goosey, and easily contaminated, police questioning that can lead to wrongful convictions. Salinas may very well have been guilty of the two murders. But in many cases, as in this one, there are no eyewitnesses and not much other evidence of guilt: That is why the police may desperately need a confession. And that makes it crucial for them to handle interrogations and confessions with the utmost care. The court appreciated none of the pressures police face, and how they can squeeze an innocent suspect.Questions first, rights later is the approach the court’s majority now endorses. And by giving the police more incentive to ask questions informally, the new ruling will also undermine the key reform that police have adopted to prevent false confessions: videotaping entire interrogations. Why not try to trap a suspect before the camera starts rolling? In only a few cases like Yarris’ will there be DNA to test. The likely result of the court’s embrace of shoddy interrogation tactics: more wrongful convictions.

Is Snowden Really A Double Agent Sent By USA To China To Assess Chinese Hacking Capabilities?

Edward Snowden, a former contractor for the U.S. National Security Agency, said he believed there had been more than 61,000 NSA hacking operations globally, including hundreds in Hong Kong and on the Chinese mainland. Those claims followed intelligence leaks Mr. Snowden made earlier this month to British newspaper the Guardian about U.S. surveillance, which prompted a political furor in the U.S.
When it comes to Hong Kong politics, activists typically see Beijing as the main source of meddling in local affairs. Although the former British colony returned to mainland rule in 1997 and continues to operate with its own distinctive political systems and rule of law, pro-democracy activists fear Beijing is encroaching on the city.
“Usually we hear from Western media that Chinese government is the one hacking,” said Oiwan Lam of Hong Kong In-media, which supports citizen journalism and is helping organize  a rally Saturday in support of Mr. Snowden. “But apparently it’s a double standard, and when the U.S. hacks we are just in the dark,” said Ms. Lam.
Supporters plan to march Saturday on Hong Kong’s government and the U.S. consulate.
“What are we going to say to fight our battles now [against Chinese hacking] if the U.S. is doing the same?” she said.
While some Hong Kong lawmakers called on the government to ask for clarifications from Washington about what activities were carried out, others said the allegations so far didn’t seem to amount to much. “We all know Hong Kong is a city where lots of spying has been carried out. If the U.S. government has been spying in Hong Kong, that’s not surprising at all,” said lawyer Martin Lee, who helped establish the city’s Democratic Party. Compared with Chinese spying activities in Hong Kong, he said, the U.S.’s activities so far revealed by Mr. Snowden are “nothing.”
Mr. Lee said he already assumes his phone line is bugged and his office computers regularly the target of Chinese hackers. “At least if I know that there’s more than one government is spying on me I might feel safer, that way it’s not just the Chinese,” said Mr. Lee, who doesn’t expect the local movement supporting Mr. Snowden to gain much traction.
“People think it’s really a matter between a U.S. citizen and his government. I doubt if that [issue] would raise too much enthusiasm from Hong Kong citizens,” he said.
On Thursday, a spokeswoman for China’s Foreign Ministry said she had no information on Mr. Snowden’s claims and reiterated China’s stance that it is a victim rather than a perpetrator of hacking. The Chinese University in Hong Kong, which Mr. Snowden named as one target of American hacking and is home to the Hong Kong Internet Exchange—an Internet hub for the Asia-Pacific region—said it hadn’t detected any form of hacking on its network.
While China’s state-controlled media at first paid minimal attention Mr. Snowden’s case, his latest allegations spurred various outlets to become more vocal. On Thursday, CCTV highlighted Mr. Snowden’s claims in its widely watched evening news broadcast. On Friday, Hong Kong’s Communist Party-sympathizing Chinese-language newspaper Wen Wei Po ran a photo illustration of Mr. Snowden’s head imposed on the body of a man wearing a long trenchcoat, frozen in a “Matrix”-style pose, under the headline “The U.S. Breaches Hong Kong Computers, Meddles in Hong Kong Affairs.”
Mr. Snowden has said that he wants to stay in Hong Kong, where he has been hiding out since May 20. He told the South China Morning Post that he ultimately plans to fight the U.S. in its courts. While Hong Kong has an extradition treaty with the U.S. government, if he chooses to apply for asylum or contest any potential extradition, Mr. Snowden could prolong his stay in Hong Kong for potentially years, lawyers say.
Still, Hong Kong-based lawyer Kevin Egan said it wasn’t likely Mr. Snowden would be able to escape extradition if the U.S. issues a request. “If I was his legal adviser, I’d be telling him to get out of town,” said Mr. Egan, citing the numerous occasions on which Hong Kong has surrendered suspects back to the U.S. “He says he has a great deal of faith in Hong Kong’s legal system and he’s going to stay and fight? Good luck to him.”
Lawyer Ronny Tong said that Hong Kong could be a good base for Mr. Snowden if his goal is to get his message out, given its international media presence and independent judicial system. But he cautioned that top-notch legal representation in Hong Kong for Mr. Snowden will be expensive, particularly if it ends up involving a protracted yearslong battle. In such a case, Mr. Snowden could wind up with a bill for up to $650,000 in legal fees, Mr. Tong said.
In addition to the attention Mr. Snowden’s allegations have received in Hong Kong and in state media, they’ve also been the object of some amusement—as well as outrage—on China’s voluble social media network.
“Chinese exiles used to run to America,” posted one user of the popular Sina Weibo microblogging service Thursday. “Now Americans start running to China.”
– Te-Ping Chen and Brian Spegele

Man Who Shot And Killed Thief Found Not Guilty

A Bexar County Texas jury on Wednesday acquitted Ezekiel Gilbert of murder in the death of a 23-year-old Craigslist escort.
Gilbert, 30, embraced defense attorneys Bobby Barrera and Roy Barrera Sr. with tears in his eyes after the not guilty verdict was read aloud by state District Judge Mary Román.
Outside the courtroom, Gilbert thanked God, the Barrera family and the jury for being able to “see what wasn't the truth” and for the “second chance.”
Had he been convicted, he could have faced up to life in prison for the slaying of Lenora Ivie Frago who died about seven months after she was shot in the neck and paralyzed on Christmas Eve 2009. Gilbert admitted shooting Frago.
“I sincerely regret the loss of the life of Ms. Frago,” Gilbert said Wednesday. “I've been in a mental prison the past four years of my life. I have nightmares. If I see guns on TV where people are getting killed, I change the channel.”
The verdict came after almost 11 hours of deliberations that stretched over two days. The trial began May 17 but had a long hiatus after a juror unexpectedly had to leave town for a funeral.
During closing arguments Tuesday, Gilbert's defense team conceded the shooting did occur but said the intent wasn't to kill. Gilbert's actions were justified, they argued, because he was trying to retrieve stolen property: the $150 he paid Frago. It became theft when she refused to have sex with him or give the money back, they said.
Gilbert testified earlier Tuesday that he had found Frago's escort ad on Craigslist and believed sex was included in her $150 fee. But instead, Frago walked around his apartment and after about 20 minutes left, saying she had to give the money to her driver, he said.
That driver, the defense contended, was Frago's pimp and her partner in the theft scheme.
The Texas law that allows people to use deadly force to recover property during a nighttime theft was put in place for “law-abiding” citizens, prosecutors Matt Lovell and Jessica Schulze countered. It's not intended for someone trying to force another person into an illegal act such as prostitution, they argued.

Read more: http://www.mysanantonio.com/news/local_news/article/Jury-acquits-escort-shooter-4581027.php#ixzz2Vf34Wmtv

Military Wakes Up To Broad Reach Of Civilian Reformers Of UCMJ

WASHINGTON (AP) — The Uniform Code Of Military Justice (UCMJ) gives American military commanders  substantial power to discipline the troops they lead. However an epidemic of sexual assaults in the armed forces has Congress considering changes to that well established authority.

The big question is by how far and how wide?

Army Gen. Martin Dempsey, chairman of the Joint Chiefs of Staff, and the four-star officers atop each service are scheduled to testify June 4th at a Senate hearing on congressional proposals to modify theUCMJ with the aim of staunching the escalating number of sexual assaults that have outraged the military and the public.

Dempsey and other military leaders say they are open to legislative solutions to the problem. But, they are deeply concerned that too drastic an overhaul by Congress will lead to unintended and alarming consequences.

Curbing too sharply a commander's ability to decide how and when to punish or pardon service members will send a message there is lack of faith in the officer corps, and that in turn will undermine the efficiency and effectiveness of the military in peacetime and war, Dempsey warned in a recent letter to Sen. Carl Levin, D-Mich., chairman of the Senate Armed Services Committee.

Paradoxically, the Defense Department's failure so far to change the military's male-dominated culture is driving a vocal group of mainly female lawmakers led by Sen. Kirsten Gillibrand, D-N.Y., to advocate aggressive reforms.

Tinkering at the edges, they argue, won't produce the seismic shift needed to send the message that sexist attitudes and behaviors will no longer be tolerated. Victims need to be confident that if they report a crime their allegations won't be discounted and they won't face retaliation.
The latest in a string of allegations came May 31, 2013.
The Pentagon said the U.S. Naval Academy is investigating allegations that three football team members sexually assaulted a female midshipman at an off-campus house more than a year ago, and a lawyer for the woman says she was "ostracized" on campus after she reported it.
The Naval Academy investigation follows several recent arrests: A soldier at the U.S. Military Academy at West Point was charged with secretly photographing women, including in a bathroom. The Air Force officer who led the service's Sexual Assault Prevention and Response unit was arrested on charges of groping a woman. And the manager of the Army's sexual assault response program at Fort Campbell, Ky., was relieved of his post after his arrest in a domestic dispute with his ex-wife.
The Pentagon estimated in a report last month that up to 26,000 military members may have been sexually assaulted last year, up from an estimated 19,000 assaults in 2012, based on an anonymous survey of military personnel. While the number of sexual assaults members of the military actually reported rose 6 percent to 3,374 in 2012, thousands of victims are still unwilling to come forward despite new oversight and assistance programs aimed at curbing the crimes, the report said.
Those numbers and outrage over two recent decisions by Air Force generals overturning juries' guilty verdicts in sexual assault cases are generating support for Gillibrand's proposal to largely strip commanding officers of the power to toss out a verdict, a change initially recommended in April by Defense Secretary Chuck Hagel and backed by Dempsey, the service chiefs and many members of Congress.
But Gillibrand's bill goes much farther — too far, according to Dempsey. It would remove commanders from the process of deciding whether serious crimes, including sexual misconduct cases, go to trial. That judgment would rest with seasoned trial counsels who have prosecutorial experience and hold the rank of colonel or above.
Her legislation, which has 18 cosponsors that include four Republicans, also would take away a commander's authority to convene a court-martial. That responsibility would be given to new and separate offices outside the victim's chain of command.
"The current system allowing commanders to have sole discretion in the disposition of legal matters is clearly broken and has a chilling effect on reporting," said Gillibrand, who chairs the Armed Services Committee's personnel subcommittee. "We must ... increase accountability within the system by removing the influence of the chain of command in the prosecution of intolerable crimes."
In a May 20 letter to Levin, Dempsey said taking away a commander's ability to convene a court-martial would "radically" alter a principal tenet of military law dating back two centuries and merged more than 60 years ago into a single Uniform Code of Military Justice.
"While Congress has modified the UCMJ from time to time, it has never removed commanders from the military justice system," Dempsey wrote. "The consequences of such a decision would be far-reaching and extraordinarily damaging to the nation's security."
Whether all or parts of Gillibrand's Military Justice Improvement Act are added to the defense policy bill for the 2014 fiscal year remains to be seen.
But changes are coming. The GOP-led House Armed Services military personnel subcommittee used Hagel's April recommendation as a starting point and then went further in a bill it approved two weeks ago.
In addition to taking away the authority to reverse courts-martial rulings, the subcommittee voted to establish dismissal or dishonorable discharge as the mandatory minimum sentence under military law for service members found guilty of rape, sexual assault, forcible sodomy or an attempt to commit those offenses. Commanders also would be barred from reducing or commuting the minimum sentence except in situations where the accused substantially aided the government in the investigation or prosecution of another assailant.

The House bill, however, stops short of taking those cases outside the chain of command, as Gillibrand's bill proposes. Rep. Michael Turner, R-Ohio, who co-chairs the House Military Sexual Assault Prevention Caucus, said the focus should be on preventing sexual assaults, not scrapping central elements of the current military justice system.

The hearing June 4 may indicate how far the Senate Armed Services Committee is willing to go. A final plan will eventually be produced after any differences between the House and Senate are resolved.

Levin has not publicly stated his position on Gillibrand's proposal but has made clear he is dissatisfied with the Pentagon's efforts to eradicate what he has described as the "plague of sexual assaults in the military."

And Sen. Claire McCaskill, D-Mo., an Armed Services Committee member and critic of the Pentagon's handling of sexual assault cases, isn't co-sponsoring Gillibrand's bill, backing instead many of the changes the House panel approved.

McCaskill told reporters last month that she's not opposed to Gillibrand's legislation but wants to be sure Congress doesn't squander a chance to pass a bill because of partisan differences over its scope. "I am tired of trying to legislate around the gridlock in Congress," she said.
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