Fixing Disability Courts
the claimant can
bring an attorney, but the system does not provide the government (SSA) with
one. The taxpayers have no advocate on their behalf to ask questions,
challenge medical evidence or review the 500 to 700 pages of materials
that make up a typical case file.
he (Social Security Administration) judicial system is not run by anyone with real judicial experience. It is at the mercy of unelected bureaucrats whose only concern is how many cases each judge can churn out and how fast he or she can do it. An adversarial system with both sides represented and all evidence on the table is the best way to root out fraud and ensure that legitimate claims are paid.
(See http://www.amazon.com/socialNsecurity-Confessions-Social-Security-Judge/dp/1449569757)
(Below is an Extract from the book, "socialNsecurity, Confessions of a Social Security Judge".)
An Interview of Judge D. RANDALL FRYE
(Above pictured is D. Randall Frye, on the right, with Marilyn Zahm)
he (Social Security Administration) judicial system is not run by anyone with real judicial experience. It is at the mercy of unelected bureaucrats whose only concern is how many cases each judge can churn out and how fast he or she can do it. An adversarial system with both sides represented and all evidence on the table is the best way to root out fraud and ensure that legitimate claims are paid.
(See http://www.amazon.com/socialNsecurity-Confessions-Social-Security-Judge/dp/1449569757)
(Below is an Extract from the book, "socialNsecurity, Confessions of a Social Security Judge".)
An Interview of Judge D. RANDALL FRYE
CHARLOTTE,
N.C. — (QUOTE) IT’S hard to imagine a more cynical fraud. According to an
indictment unsealed last week by the Manhattan district attorney’s
office, post-9/11 phobias of airplanes and skyscrapers were among the
fictitious ailments described by retired New York City police officers
and firefighters who, in a scheme involving as many as 1,000 people, are
accused of ripping off the Social Security disability system by filing
false claims.
As
an administrative law judge (ALJ) responsible for hearing Social Security
disability cases (SSDI), I’m more familiar than most people with the system.
But everyone has a right to be outraged by the recent charges. Officials
estimate that the fraud cost the federal government $400 million. If
true, it is the largest theft in the history of Social Security.
According
to court papers, the fraudsters claimed to be so ill that they could
not leave their homes to work, but many posted photographs on Facebook
of themselves on motorcycles and water scooters, fishing and playing
sports. How did they expect to get away with it?
Well,
here’s a little-known fact. Neither the staff members of the Social
Security Administration, who review initial claims, nor judges like
myself, who hear disputed cases, are allowed to look at Facebook in the
context of a case. Even if something in the case file suggests a
claimant is not telling the whole truth, Social Security Administration
policy prevents us from looking at social media, for fear that we cannot
be trusted to properly assess the information gathered there. No
Facebook, no Pinterest, no Twitter, no Tumblr. None of the sources that
most employers routinely use to check the credibility of potential
employees are available to us.
It
gets worse. When a disputed case comes before an administrative law
judge, a vast majority of claimants bring an attorney. After all, the
average claim, if successful, will yield a payout of some $300,000 in
lifetime benefits. With so much at stake, it’s only reasonable that a
person who believes that he has wrongly been denied benefits would hire a
lawyer. But isn’t it equally reasonable that the taxpayers should have
an attorney present to challenge a claim that might be false?
Sorry,
no luck. When I conduct a hearing (which occurs with no members of the
press or public present, because of privacy concerns), the claimant can
bring an attorney, but the system does not provide the government (SSA) with
one. The taxpayers have no advocate on their behalf to ask questions,
challenge medical evidence or review the 500 to 700 pages of materials
that make up a typical case file. Not only that, but because of Social
Security Administration policy, I am no longer allowed to order
independent psychological testing to help determine whether a claimant
is telling the truth.
Social
Security disability courts have millions of claimants and constitute
one of the world’s largest judicial systems. But the (Social Security) judicial system is not run
by anyone with real judicial experience. Instead, we are at the mercy of
unelected bureaucrats whose only concern is how many cases each judge
can churn out and how fast we can do it. The Social Security
Administration is currently run by an acting commissioner; President
Obama should appoint a permanent leader with recognized professional
experience in the field of social insurance.
The
Association of Administrative Law Judges AALJ), for which I serve as
president, favors modernizing disability hearings so that we can give
claimants a fair hearing while also protecting taxpayers. Our courtrooms
ought to look more like what you see on “Law and Order” or “The Good
Wife.” Each side should have an advocate, allowing judges to narrow the
facts in dispute and apply the law in a neutral manner. And judges and
their staff members should be able to use social media, including
Facebook.
Though
it is not clear from the Manhattan district attorney’s indictment if
any of the claims in question ever wound up before an ALJ, it is clear than the current antiquated system handicaps the
effective review of cases and encourages brazen behavior.
The
system needs to be made more trustworthy and fully transparent. The
actions of a few crooks must not be allowed to threaten the disability
payments of millions of people who are genuinely disabled, many of whom
paid into the disability insurance fund during their working lives. An
adversarial system with both sides represented and all evidence on the
table is the best way to root out fraud and ensure that legitimate
claims are paid.(UNQUOTE)
D. Randall Frye is
an administrative law judge for the United States Social Security
Administration and the President of the AALJ, Association of Administrative
Law Judges.
EXTRACT from the book ( "socialNsecurity, Confessions of a Social Security Judge", published 2010, Introduction, p. 17)
..
Social Security
Disability hearings are not trials. They are more in the nature of fact finding
inquiries. They are presided over by an administrative law judge (ALJ), who is
trained in the law. At a hearing only one side of the case is present and
represented by an attorney or a paralegal. That is the claimant’s side.
If only one side of a
controversy is present for the hearing, then why does the claimant need to have
a judge presiding? When the Government wants to win a case, Congress designs a
system that provides it with an advantage. In Immigration Hearings, the
Government is represented by an attorney. When the Government is a party to a
hearing before the Supreme Court, it is represented by the Solicitor General.
In any other federal judicial forum where the Government has an interest, the
Attorney General will ensure that the Government is adequately represented.
In Social Security
Disability hearings the Government is not represented. The Government is not
even present. That is probably because the system was designed to give the
claimant an advantage. The case is the claimant’s case, to win or to lose. A
judge is not needed to collect the medical records and listen to testimony that
is not really cross-examined. The presiding officer is forced to accept the
claimant’s testimony, no matter how farfetched it may be. The only evidence
available to impeach the testimony of the witnesses is the evidence that the
claimant provides. This could hardly be considered cross-examination.
...
In a trial there are
usually two sides to a controversy. Each side is required to be present but may
or may not be represented. A judge acts as referee to ensure that the rules of
evidence and procedure are followed. There may or may not be a jury to
determine the facts.
In a Social Security
hearing only one side is present; that is the claimant, and his or her
representative. The case is against the Government, but the Government is not
present. Neither is the Government represented. That is because the system was
designed to ensure that the claimant wins. After all, he is only asking for
what is rightfully his. He has a social contract with the Government. He has
paid his premiums in the form of payroll taxes and he is fully insured. Instead
of honoring its obligations under the contract the Government first tries to delay
or deny the claim. This is just plain bad faith.
(socialNsecurity, Confessions of a Social Security Judge", published 2010, Amazon.com, Introduction, p. 17)
3 comments:
Judge Frye's solution would not work. It is naive, at best. It would destroy the Disability Program. Any one with civil or criminal trial experience would know that. The natural consequences of such a move are obvious. The backlog would increase exponentially immediately. The length of the hearings would go from 30 minutes to days and possibly weeks. Government witnesses, such as Consultative Medical Examiners would not appear at the Hearings, for various reasons. They do not get paid enough. They could not withstand the most minor cross-examination. The most incompetent trial attorney would be able to drag out the proceedings indefinitely. The processing times would expand from about 585 days to years. It would take up to 10 years for a claimant to get a final Agency decision. The reversal rate would go from an average of 65% to less than 20% or less. Very few people would be able to prove disability by a preponderance of the evidence. The costs of administering the SSDI program would skyrocket. Nothing good would come from Judge Frye's solution. It flys in the face of the original intent of the designers of the Program. The Program was designed so that the claimant would win, in the end. That is why the Government has never been represented.
Judge Frye is correct when he says that "The (Social Security Administration) judicial system is not run by anyone with real judicial experience". What he does not say is that the administrative staff in the Hearing offices are barely more than high school graduates. The are not prepared to deal with legal associates, paralegals, and secretaries from law offices when it comes to technical legal matters.If this were to become a true adversarial system, the Social security staff would not be able to speak the language; the legal language, that is. The language of pleadings, motions, res ipso loquitor, and such.
Judge Frye conveniently ignores another fact. That is that this is a "high volume business". Cases have to be moved through the system quickly. These cases have to be processed. If not, there will be an enormous back-log. Thousands of cases are coming in the front door daily, and they have to be disposed of properly. Under Judge Frye's proposed system where the Government is represent by an attorney advocate, the back log would quickly reach critical mass and the disability system would implode. It would collapse under its own weight. No sensible politician is going to let that happen.
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