Social Security Administration judge in Portland claims age discrimination
Administrative Law Judge Katherine Morgan, who is 71, is suing the Social Security Administration (SSA) and the Commissioner of SSA in U.S. District Court in Portland for age and sex discrimination..
Judge Katherine Morgan rules on disability cases for the SSA. She has sued the SSA accusing her supervisors of
age and gender discrimination and retaliating against her for filing
complaints about her treatment.
Judge Katherine Morgan, one of seven judges in the
Office of Disability Adjudication and Review (SSA/ODAR) in Portland, said in the
lawsuit filed Thursday, March 19th, in U.S. District Court in Portland that she was
targeted by the office’s chief judge (CALJ)because of her age. She is 71.
Morgan, who has been a judge since 1994, filed a written complaint to
her immediate supervisor, Chief Judge Guy Fletcher, after she was told
on Dec. 11, 2013, that she was being targeted in an investigation by the
SSA for her performance. The investigation
focused on Morgan’s high production rate in deciding cases, for
approving a high number of appeals and for attendance issues, according
to the lawsuit.
“Chief Judge Fletcher repeatedly falsely accused Judge Morgan of time
and attendance violations for documenting her time and attendance in
exactly the same manner as the other judges, who were not accused,” the
lawsuit says. “The discriminatory conduct directed at Judge Morgan by
her fellow employees was known to and acquiesced in by her direct
supervisor, Chief Judge Fletcher. The discriminatory conduct was
directed at Judge Morgan by Chief Judge Fletcher was known to and
acquiesced in by Regional Chief Judge (Carol) Sax, Chief Judge
Fletcher’s direct supervisor. The discriminatory conduct was
intentional, willful and malicious, entitling Judge Morgan to an award
of punitive damages.”
The lawsuit does not specify how much money Morgan is seeking. She
demands a jury trial seeking damages for lost money, emotional pain,
compensation allowed by law and other legal fees.
The lawsuit was filed on Morgan’s behalf by attorneys from the
Portland law firm Norman, Hanson and DeTroy. One of her attorneys,
Theodore Kirchner, declined through a member of his staff to respond.
A regional spokesman for the Social Security Administration, Roberto Medina, could not be reached for comment.
Maine’s offices of Disability Adjudication and Review routinely take
longer to decide disability appeals than the national average and
approve more disability claims than the national average, according
Social Security Administration data compiled by the website www.disabilityjudges.com.
In the most recent fiscal year, Maine judges approved 53 percent of
disability claim appeals, dismissed 24 percent of claims and denied 23
percent, according to the website’s statistics.
Morgan approved more appeals than any other judge in the Portland
office. She approved 65 percent of disability claim appeals, dismissed
20 percent and denied 15 percent. She decided 148 cases from last Oct. 1
to March 11.
By comparison, Judge Fletcher approved 54 percent of appeals, dismissed 15
percent and denied 31 percent. He decided 48 cases in the same period. Judge John Edwards approved the fewest appeals in the Portland
office, with 35 percent approved, 30 percent dismissed and 34 percent
denied. He decided 151 cases. (By Scott DolanStaff Writer ,sdolan@pressherald.com)
"Republicans’ Latest Salvo In Anti-Immigrant Fight: Take Away Social Security Numbers"
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Sen. Ben Sasse (R-NE)
(AP Photo/Nati Harnik)
Six Republican senators introduced a bill
March 16 that would prohibit the government from issuing Social Security
numbers to undocumented immigrants protected under the president’s
executive action on deportation relief. The bill is the latest salvo in
the Republican-led fight against the president’s immigration policies to grant temporary work authorization and deportation relief to some undocumented immigrants living in the United States.
In a press release,
the bill’s sponsor Sen. Ben Sasse (R-NE) wrote that the Amnesty Bonuses
Elimination (ABE) Act would “ensure that new Social Security Numbers
are not issued to illegal aliens receiving deferred action under the
President’s unlawful executive amnesty. … Unfortunately, by offering new
Social Security Numbers and payments under the Earned Income Tax
Credit, the Administration is undermining the spirit of the 1996 Welfare
Reform Act and opening the possibility for amnesty bonuses of more than
$24,000 in some cases.”
Once undocumented immigrants are able to obtain Social Security
numbers, Sasse claims that they could reap about $2 billion in Earned
Income Tax Credit (EITC), a federal benefit. The ABE Act would prohibit
new numbers from being issued to anyone who was granted deferred action
between June 15, 2012 and November 20, 2014 as a result of the
president’s 2012 executive action known as the Deferred Action for
Childhood Arrivals (DACA) program.
Just last week, Sasse and Sen. Jeff Sessions (R-AL) sent a letter
to the Social Security Administration requesting information on the
number of individuals granted social security numbers to determine how
many of them would receive benefits under the Social Security Disability
Insurance program or the Supplemental Security Income program.
Sasse’s argument that some undocumented immigrants could collect more than $24,000 in EITC comes from an unlikely scenario
in which immigrants could file amended tax returns for the last three
years and earn the maximum credit available to taxpayers with three or
more children and who are within a specific income range. Just 12
percent of EITC recipients fulfill that criteria and many do not qualify
for the maximum credit. The last time a lawmaker — Rep. Paul Gosar
(R-AZ) — made this argument, a Treasury Department spokesman told the Washington Post that the claims process would mean many undocumented immigrants could owe more taxes rather than reaping a tax benefit.
Social Security numbers allow undocumented immigrants to apply for
jobs and to obtain state identification cards like driver’s licenses. A
University of California at Los Angeles (UCLA) study found that DACA
beneficiaries saw at least a 150 percent wage increase
when they’re allowed to work. A Center for American Progress (CAP)
study found that moving undocumented immigrants from the informal (under
the table) economy into the formal economy would see an 8.5 percent increase in legal, taxable earnings. A previous CAP study
found that higher wages earned by undocumented immigrants brought into
the formal economy could lead to purchases such as houses, cars, phones,
and clothing.
And advocates point out that because undocumented immigrants already pay billions of dollars per year into the Social Security system through sales, income, and other taxes, depriving of them of Social Security numbers leaves then uniquely disadvantaged.
“This bill would leave hard-working immigrant Nebraskans – who
already pay state, local, and federal taxes – unable to fully contribute
to their communities,” Omaid Zabih, a staff attorney at the immigrant
advocacy group Nebraska Appleseed, said. “Jeopardizing the temporary
administrative relief programs to keep families together is not in line
with Nebraska values of strong families and communities. Now is not the
time to inhibit economic growth in our local, state, and national
economies. It is the time to move forward with updated immigration
laws.”
Since 2013, Republican lawmakers have tried over and over
again to roll back the president’s executive action, even withholding
Department of Homeland Security (DHS) funding over the policies. A Texas judge has already temporarily halted the president’s latest executive action announced in November 2014, while a 26-state lawsuit attacking the actions could reach the U.S. Supreme Court. (by Esther Yu-Hsi Lee)
SAN DIEGO (CN) - The
Social Security Administration (SSA) tampered with evidence and harassed and
intimidated Vietnamese, Iranian, and Somalian refugees who filed
affidavits in an action pending in the 9th Circuit, immigrants claim in a
class action. Lead plaintiff Mohammad Nassiri et al. sued
Social Security Commissioner Carolyn Colvin, the Social Security
Administration (SSA), and two SSA agents on March 14 in Federal Court. The
class consists of "poor, disabled and non-English speaking Vietnamese
or Middle Eastern (Somalian, Iraqi and Iranian) refugees in the United
States who reside in San Diego County and who have been applying for or
receiving Disability Insurance Benefits (DIB) and/or Supplemental
Security Income (SSI) benefits." According to the lawsuit, the
SSA has "been maintaining and implementing an illegal search and
interrogation policy with respect to plaintiffs, and have violated the
plaintiffs' rights to be free from unreasonable searches and
inquisition." Social Security agents have intimidated class
members "to recant their prior written testimonies in an ongoing action
pending in the 9th Circuit Court of Appeals," according to the
complaint. The 9th Circuit action relates to the class members'
representation in a complaint filed by Alexandra Nga Tran Manbeck, who
claims the agency suspended her in 2013 from practicing Social Security
law in retaliation for filing a previous class action alleging bias by a
Social Security judge. Manbeck was the only attorney in San Diego
fluent in Vietnamese. The new complaint claims the SSA
"intimidated plaintiffs in providing personal information and privileged
information in violation of the plaintiffs' privacy right and
plaintiffs' attorney-client privilege, even though defendants knew that
plaintiffs have been represented by counsel in ongoing litigation in
federal court since 2013." Class member Anh T. Thai, a
50-year-old Vietnamese refugee, says she was first misled in 2006 by
Duke Tran, an SSA employee, into letting him help her apply for
benefits. Tran began harassing her in threatening phone calls in March
2013 after she obtained an attorney, including calling her "stupid" for
signing loan documents to an acquaintance, and berating her "for seeking
legal representation instead of trusting him to help her," according to
the complaint. After Thai filed her affidavits against the
agency in the Manbeck action, two agents bearing guns came to her house
twice to question her. "Most of the questions centered on
whether she was really disabled and whether she was required to pay in
advance for legal services to her attorney," the lawsuit states. "The
SSA agents threatened her with dismissal of her case if she refused to
answer their questions." The class claims that because they are
"refugees with a long history of being persecuted by the Communist
authority in Vietnam, the warlords in Somalia or the ayatollahs in Iran,
plaintiffs obviously became intimidated by defendants and complied with
defendants' order." The plaintiffs seek class certification, an
order stop the Social Security Administration and its agents from
contacting them before a final hearing or intimidating them without a
warrant, and compensatory and punitive damages for civil rights
violations. They are represented by Quan Minh Chau of Orange, Calif. and Alexandra Manbeck of Cross River, N.Y.
The Social Security Disability Insurance
program is failing the disabled and taxpayers. When the SSDI trust fund
is depleted in 2016, payments to beneficiaries will be slashed by
roughly 20 percent.
The SSDI trust fund has significantly
worsened during the Obama Administration, and its depletion is coming 10
years sooner than experts predicted in 2007.
President Obama's payroll tax reallocation proposal harms both retirees and the overall solvency of Social Security.
The Social Security Disability Insurance (SSDI) program is failing the disabled and taxpayers. The program faces a funding shortfall of nearly $270 billion over the next decade. The Social Security trustees project that the SSDI trust fund - funded by a 1.8 percent tax on wages up to $117,000
in 2014 - will be depleted by late 2016. At that time, payments to
beneficiaries will be slashed by roughly 20 percent. The finances of
trust fund have worsened drastically in comparison with the agency's
2007 projection of what would happen. The number of program enrollees is
up 21 percent during the Obama administration. Payments from SSDI
have grown rapidly over the past two decades. Only about a third of
that growth is from changing demographic factors, such as the aging of
the population. SSDI's pending insolvency has been accelerated by the
weak economic recovery, less stringent eligibility criteria, and Social Security Administration
mismanagement. This includes skewed agency policies that incentivised
hundreds of administrative law judges ALJ) to essentially rubber stamp
disability claims.
Judge Randall Frye, President of the Association for Administrative Law Judges (AALJ) told 60 Minutes in 2013 that "if the American
public knew what was going on in our [disability] system, half would be
outraged and the other half would apply for benefits." SSDI must be
reformed in order to better serve both the disabled and workers paying Social Security taxes.
Unsustainable Spending Growth
Accurate
disability determinations are crucial, since the lifetime cost of
someone gaining eligibility for SSDI benefits, including benefits in
programs linked to SSDI, is an estimated $300,000 per beneficiary. Once people get SSDI benefits, they generally receive them until they are old enough to transition to the Social Security retirement program.
In
1994, the SSDI portion of the payroll tax was increased by 50 percent.
Reforms were promised with the reallocation. The reforms never happened,
and SSDI's finances have deteriorated to the point where another
reallocation is being proposed.
In 2000, total spending on SSDI was $56 billion; in 2014 it was $144 billion. The program's unfunded liability amounts to $1.2 trillion
over the next 75 years. The condition of the trust fund has
significantly worsened during the Obama administration, and the
depletion of the trust fund is coming 10 years sooner than experts
predicted in 2007.
Despite
improvements in health and working conditions, a much higher percentage
of working-age Americans are now on SSDI than two decades ago. This is
true for both men and women, and across age groups. The number of
middle-age Americans who tell the Census Bureau that they have a work-limiting disability has actually declined over the last 30 years.
Writing in the Wall Street Journal on February 23, former Social Security Administration official Andrew Biggs
noted the disconnect: "Yet the percentage of the working-age population
collecting disability insurance benefits has more than doubled to 5.7%
in 2014 from 2.7% in 1984. These increases were not anticipated: In 1984
Social Security's trustees projected only 4% of working-age adults would collect disability in 2015."
The rapid growth in SSDI also has put pressure on Medicare's finances, as people are automatically enrolled in Medicare after two years on SSDI. In 2012, SSDI beneficiaries accounted for about 19 percent of total Medicare recipients, up from about eight percent in 1975. Medicare spending for SSDI enrollees in 2011was $80 billion.
Outdated and Overly Subjective Guidelines
Under
the Social Security Act, people can only lawfully be awarded disability
benefits if they have an impairment "of such severity that [they]...
cannot... engage in any... kind of substantial gainful work which exists
in the national economy." A key problem with this requirement is the
lack of objective criteria for measuring things like an applicant's
anxiety, depression, or pain and how those conditions affect the ability
to work.
Research by Mark Duggan, President Obama's
former advisor for health care policy, shows an increasing number of
people qualifying for SSDI with subjective conditions like back pain or
depression. More than half of all disability awards are now for people
claiming musculoskeletal disorders or mental impairments. According to
Duggan, "the employment potential of SSDI applicants with these more
subjective conditions remains substantial, and it is often difficult to
verify the severity of these conditions (in contrast to cancer or heart
conditions). With the liberalization of the medical eligibility
criteria, it has become increasingly possible for people who are capable
of working to qualify instead for SSDI benefits."
In addition to
increasingly subjective medical criteria, many SSA policies are stuck in
the past. For example, the agency relies on medical and vocational
guidelines from 1978 that don't reflect economic and demographic
reality. Outdated rules also allow an inability to communicate in
English to be used to award disability - even if the person can perform
work that does not require communicating in English. Workers Leaving the Labor Force
On February 3,
Gallup reported that "as many as 30 million Americans are either out of
work or are severely underemployed." Economists with the Federal
Reserve Bank of Atlanta concluded in May 2013
that the growth in disability is a significant factor in the rapid
decline in the labor force participation rate during the Obama
administration. According to Biggs, for "less-educated workers, the
typical annual disability package of almost $15,000 in cash payments and another $9,000 in Medicare benefits - coupled with the ability to earn more than $13,000
from work without losing benefits - can be attractive." Fewer than one
percent of program beneficiaries return to the workforce in any given
year.
A 2010 paper published jointly by the liberal Center for American Progress and the Brookings Institution
echoes this point: "SSDI is ineffective in assisting workers with
disabilities to reach their employment potential or maintain economic
self-sufficiency. Instead, the program provides strong incentives to
applicants and beneficiaries to remain permanently out of the labor
force." Applicants are often counseled that they should stop working in
order to increase their chance of winning benefits. SSDI also is too
often used as an early retirement program or as a long-term extension of
unemployment insurance. People who lose their jobs are increasingly
likely to leave the labor force and apply for SSDI. Social Security Administration's Broken Appeals Process
The
appeals process for SSDI applications consists of administrative law
judges (ALJ) who evaluate disability claims. This step generally comes after
two previous denials from State government examiners at the Disability Determination Service (DDS). Given this, it is
particularly disturbing that hundreds of ALJs over the past decade
placed almost everyone before them onto disability. That represents a 100% reversal rate. Essentially everyone who applied for benefits, was granted benefits. The broken process
has inappropriately placed hundreds of thousands, if not millions, of
people onto disability. According to one Social Security expert, the standards ALJs apply for mental illness and pain have become less stringent over time.
A
central problem is that SSA sought to reduce a large backlog of appeals
by focusing entirely on the quantity of ALJ decisions, with no concern
about quality. One ALJ testified before a House committee in 2013 that a
judge's production "is SSA management's singular and exclusive focus in
its administration and oversight of SSA's disability hearings
process.... Instead of managing a meaningful federal adjudication
program, SSA management has substituted a factory-type production
process... causing incalculable damage to the adjudication process at
SSA."
Another ALJ put it this way: "It has become increasingly clear the Social Security
disability programs, instead of only awarding benefits to adults who
are unable to work, is granting benefits to those who can work -
effectively giving away money for nothing."
ALJs face incentives
that encourage approvals. Since denials tend to be appealed, and
approvals do not, ALJs need to spend more time crafting denial
decisions. It is much easier and faster for an ALJ to approve a claim.
Other problems also bias ALJ decisions to favor approvals. First,
hearings are non-adversarial, so there is no one to represent the
taxpayer interests. Second, there is no one involved with the previous
denials to present their reasons for the denial at a hearing. Third,
claimants are not required to submit all relevant evidence. One ALJ told
the Washington Post in an October 18, 2014,
article: "I really wonder if what we're doing is effective at all....
If, based on the amount of evidence we get, my decision is any better
than flipping a coin." Many Judges Incorrectly and Unfairly Apply Disability Law
In response to negative attention about problems with the disability appeals process, the Social Security Administration
finally decided to evaluate the quality of a small sample of its
judges. The agency conducted reviews of about 50 ALJs. It found that
many of them repeatedly violated disability laws and policies,
including: misusing vocational experts; inappropriately altering
information to make it appear claimants cannot work; inappropriately
evaluating the effect of drugs and alcohol on impairments; and
inappropriately using boilerplate language in decisions. Despite the
ability to do so, the agency has failed to take necessary action to
protect the public from many of these rogue ALJs.
Between
2005 and 2013, ALJs approved 66 percent of claims, awarding disability
benefits to 3.2 million people, including SSDI applicants and
Supplemental Security Income applicants. A top management ALJ testified
in the House last year that "it raises a red flag" when individual ALJs
have an allowance rate in excess of 75 percent. Between 2005 and 2013,
ALJs with annual allowance rates in excess of 75 percent put more than
1.3 million people onto disability. The lifetime cost to taxpayers for
these claims is estimated at $400 billion. According to a
congressional report, "there were 191 ALJs who had a total allowance
rate in excess of 85 percent [between 2005 and 2013]. These 191 ALJs
awarded more than $150 billion in lifetime benefits
between 2005 and 2013. As an indication of the disproportionate nature
of the problem, only one ALJ had a total allowance rate below 15 percent
between 2005 and 2013."
According to a 2012 report by SSA, "As
ALJ production increases, the general trend for decision quality is to
go down." This can lead to a patently unfair system, where a claimant's
success rests more on getting the right judge than on the merits of
their claim. Agency Fails to Conduct Required Disability Reviews
The
Social Security Act requires Continuing Disability Reviews (CDR) at least
once every three years for all beneficiaries with non-permanent
impairments. SSA estimates that about $10 to $14 in improper payments is prevented for every $1 spent on these reviews.
For
the past several years, the agency has defied this legal requirement.
The number of reviews conducted by the agency dropped conspicuously in
the mid-2000s as the agency diverted resources to other areas. Between
2007 and 2009, the agency only conducted reviews for one percent of SSDI
recipients. Last year, SSA reported http://www.gao.gov/assets/670/662398.pdf a backlog of 325,000 reviews.
Reviews
conducted between 1980 and 1983 found that 40 percent of program
beneficiaries were not disabled. Reviews now fail to remove anywhere
close to that number, because they are inappropriately conducted.
Claimants must now show significant medical improvement in order for a
review to end benefits. This strict standard of review means that the
agency cannot remove someone who was wrongfully awarded benefits
initially.
According to the National Association of Disability Examiners,
poor ALJ decisions and a lack of clarity around the medical improvement
standard erode disability program integrity. GAO found that problems
associated with the medical improvement standard include inadequate
agency guidance, inadequate documentation in ALJ decisions, and an
incorrect presumption of disability by examiners. Over the last decade,
the agency reviewed 800,000 people it expected to improve when they were
initially awarded benefits. As a result of the current limits on
disability reviews, 82 percent were found not to have improved, and so
those people remained on disability. SSA Too Cozy with Special Interest Groups Attorneys
and other claimant representatives benefit from SSDI growth as they
receive a generous portion of the payments - up to $6,000 when their clients are approved for benefits. These payments are made directly from the trust fund. In 2010, SSA paid $1.4 billion to lawyers and other claimant representatives, up from $425 million in 2001.
The
large payments lead many claimant representatives to conceal
information and even shop for ALJs known to rubber-stamp applications.
The large fees paid from the SSDI trust fund to attorneys and claimant
representatives create huge incentives for those groups to oppose
common-sense program reforms. Reforming SSDI Is Important for the Disabled and Taxpayers
Without
reform, SSDI will erode economic productivity and will either result in
large payment cuts for program beneficiaries or tax increases. A
bipartisan solution is urgently needed to fix the program and preserve
it for those who truly cannot work.
Rather than reform,President Obama and others have proposed kicking the can down the road and reallocating the Social Security
payroll tax. Currently, the total payroll tax equals 12.4 percent of
wage income - with 1.8 percent dedicated to SSDI and 10.6 percent to the
old age and survivor component. Reallocation would worsen the solvency
of Social Security's OASI trust fund and harm retirees. Reallocation would transfer $350 billion
from OASI to SSDI in the next five years. This would be a particularly
bad idea given that OASI's financial condition is in even worse long-run
shape than is SSDI's.
According to Social Security trustee Charles Blahous,
"[r]earranging the deck chairs, rather than slowing cost growth, would
be an inadequate response with potentially ruinous implications for the
program." In a January 15 editorial, the Wall Street Journal
used the analogy of "an underwater borrower transferring debt from one
maxed-out credit card to another with a higher balance but also a higher
spending limit on SSDI. President Obama has failed to lead on this important
issue, meaning it falls to Congress to protect and reform."
(Federal Information & News Dispatch, Inc., March 12, 2015)
Nine percent of the judges who hear appeals grant benefits 90% of the time, costing taxpayers tens of billions.
Would Meaningful Reforms Restore Dignity and Efficacy To The Social Security System?
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.
http://www.amazon.com/Judge-London-Steverson/e/B006WQKFJM
he (Social Security Administration) judicial system isnot 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)
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 was an administrative law judge (ALJ) for the United
States Social Security Administration (SSA) and the President of the
AALJ, Association of Administrative Law Judges.
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.
President
Richard Nixon had his Enemies List. President George Bush had his
Wanted List. President Barack Obama has his Kill List; and Linda de Soto
has her “Hit List“. Lisa De Soto is the Deputy Commissioner for
SSA/ODAR, the Social Security Administration’s Office of Disability and
Adjudication Review. Deputy Commissioner Linda de Soto and Chief
Administrative Law Judge Frank Cristaudo fabricated bogus charges
against Administrative Law Judges (ALJs) and forced many into early
retirement.
Former Social Security Commissioner Michael Astrue,
who took office in 2007, like every Commissioner before him tried his
own brand of reform. He made changes to the Social Security Operating
System.
Trying to reduce the Backlog, he tinkered with the
personnel system. Mostly, he went after the ALJs. He blamed the ALJs for
everything. He was a "blame the Judges first" man.
His reforms
produced minor and temporary results. The Backlog was reduced for a
moment in time. His programs to increase accountability and judicial
turnover were a disaster.He removed good experienced ALJs and replaced
them with new, inexperienced and easily manipulated ALJ recruits who
could be told how to decide cases.
He had a formula for how many
claimants should be granted benefits and how many should be denied. The
new ALJs lack proper judicial temperament, and that is what Astrue was
after.
He wanted to take away the judicial independence of the judges. It was a numbers game, and a high volume business.
Along with Linda de Soto ,Astrue marked every ALJ with 15 to 20 years experience on the job for
removal. Experienced and senior male judges were forced to retire so
that less experienced radical feminist female judges could be installed as Chief
ALJ in the Hearing Offices. This was most prevalent in California, in
the SSA's Ninth Region.
Linda DeSoto proudly bragged about the number of judges on her "Hit List" that she had to get rid of. At any one time there were 25 or more judges on her Hit List.
Judges
were ordered to retire or resign. Any who refused were brought up on
charges. The charges were flimsy and ridiculous; such as, receiving
personal mail and magazines at the Office, using the OHA Office address
on their official business cards (that were designed, ordered, and
printed by the SSA Agency), storing pictures deemed inappropriate on
their personal computers (pc), looking at inappropriate web sites during
office hours or after hours, writing letters on obsolete stationary with SSA
letterheads no longer in use, and using their titles (U. S. Administrative Law Judge)
when signing personal letters. Judges' offices were searched without their knowledge on weekends
when they were not present. Judges' phone conversations were monitored.
Their privacy was invaded. Their computers were searched and seized without notice or
warning. Some judges went to lunch and came back to the office to find
their computers had been taken by Astrue's henchmen. Judges were locked
out of their personal offices. The locks to the main SSA work place were
changed and ALJs were not given the new office key. Moreover, if any cases
went to NLRB Hearings, the Agency suborned perjury, and disobeyed their
own Agency Rules. Astrue's policies were a disaster. He demoralized the
ALJ corps, and morale among the judges plummeted. As a result the
administrative staff was confused and frustrated. This atmosphere caused
efficiency to suffer and increased the Backlog.
Administrative Law Judge Katherine Morgan, who is 71, sued the Social Security Administration (SSA) and the Commissioner of
SSA in U.S. District Court in Portland for age and sex discrimination in March 2015.
Judge Katherine Morgan ruled on disability cases for the SSA. She sued the SSA accusing her supervisors of
age and gender discrimination and retaliating against her for filing
complaints about her treatment.
Judge Katherine Morgan, one of seven judges in the
Office of Disability Adjudication and Review (SSA/ODAR) in Portland, said in the
lawsuit filed Thursday, March 19th, in U.S. District Court in Portland that she was
targeted by the office’s chief judge (CALJ)because of her age. She is 71.
Morgan, who has been a judge since 1994, filed a written complaint to
her immediate supervisor, Chief Judge Guy Fletcher, after she was told
on Dec. 11, 2013, that she was being targeted in an investigation by the
SSA for her performance. The investigation
focused on Morgan’s high production rate in deciding cases, for
approving a high number of appeals and for attendance issues, according
to the lawsuit.
“Chief Judge Fletcher repeatedly falsely accused Judge Morgan of time
and attendance violations for documenting her time and attendance in
exactly the same manner as the other judges, who were not accused,” the
lawsuit says. “The discriminatory conduct directed at Judge Morgan by
her fellow employees was known to and acquiesced in by her direct
supervisor, Chief Judge Fletcher. The discriminatory conduct was
directed at Judge Morgan by Chief Judge Fletcher was known to and
acquiesced in by Regional Chief Judge (Carol) Sax, Chief Judge
Fletcher’s direct supervisor. The discriminatory conduct was
intentional, willful and malicious, entitling Judge Morgan to an award
of punitive damages.”
The lawsuit did not specify how much money Morgan was seeking. She
demanded a jury trial seeking damages for lost money, emotional pain,
compensation allowed by law and other legal fees.
The lawsuit was filed on Morgan’s behalf by attorneys from the
Portland law firm Norman, Hanson and DeTroy. One of her attorneys,
Theodore Kirchner, declined through a member of his staff to respond.
A regional spokesman for the Social Security Administration, Roberto Medina, could not be reached for comment.
Maine’s offices of Disability Adjudication and Review routinely took
longer to decide disability appeals than the national average and
approved more disability claims than the national average, according
Social Security Administration data compiled by the website www.disabilityjudges.com.
In the most recent fiscal year, Maine judges approved 53 percent of
disability claim appeals, dismissed 24 percent of claims and denied 23
percent, according to the website’s statistics.
Morgan approved more appeals than any other judge in the Portland
office. She approved 65 percent of disability claim appeals, dismissed
20 percent and denied 15 percent. She decided 148 cases from last Oct. 1
to March 11.
By comparison, Judge Fletcher approved 54 percent of appeals, dismissed 15
percent and denied 31 percent. He decided 48 cases in the same period. Judge John Edwards approved the fewest appeals in the Portland
office, with 35 percent approved, 30 percent dismissed and 34 percent
denied. He decided 151 cases.Using the
Medical Vocational Grids or simply The Listings, until about
1995 every person in America who
filed for Social Security Disability Benefits (SSI and SSID) and alleged a mental impairment because of drug or alcohol addiction was granted
benefits. All the winos, alcoholics and misfits with the slightest
mental impairment were conclusively presumed to be incapable of engaging
in Substantial Gainful Activity (SGA) and therefore were entitled to
draw Social Security Benefits according to Social Security Regulations.
Those Regulations were contained in The Listings or The Grid. All SSA Judges were
duty bound and required to follow them. Many healthy people who were
injured and could not work were denied benefits when the drunks and
derelicts of American society were granted benefits. It bordered on a
public scandal.
The Regulations they followed were known as the
Medical Vocational Grids or simply The Listings. They were not always
logical; like a camel is a horse designed by a committee. The Listings
were designed by Social Security scholars.
For instance, the bar to
benefits approval was and still is lower for someone who doesn’t speak
English, on the theory that it is difficult to work in America when you
cannot speak English.
These guidelines (in The Listings) also do not
give due consideration to actual labor market experience, dictating a
looser approval standard for someone with only a high-school degree,
even if the person has succeeded in the labor force for decades.
The
framework (of The Listings) was developed in the late 1950s, for the
previous generation’s workforce, and hasn’t been updated since 1978.
According
to a well placed source high in the Social Security Administration’s
Office of the Chief Administrative Law Judge, Lisa de Soto had stated
that she had a list of 25 ALJs that she intended to get rid of. This was
her “Hit List”. She set about her goal in a most vigorous manner.
A
federal agency is required to follow its own regulations. This mean
very little to Lisa de Soto and Frank Cristaudo. They have violated many
SSA regulations concerning the discipline and removal of agency
personnel.
Cristaudo and de Soto have brought charges against
judges. Chief Judge Cristaudo has testified at Federal Labor Relations
Administrative hearings designed to censure or remove judges. None of
the charges against any of the judges have alleged poor performance as a
judge, or dereliction of duty. No substantive charges have been brought
against any judges. Instead, judges have been charged with, among other
things, receiving personal mail at the office, misuse of a government
computer, and saving pictures on their computers of persons other than
immediate family members.
Frank Cristaudo has made a career of
destroying other peoples’ careers. He tried running for public office in
New Jersey and could not get elected. Some how he managed to get
appointed an administrative law judge at the Social Security
Administration. He could not conduct a proper hearing so someone
appointed him as the Chief Judge. Who better to appoint chief judge than
someone who cannot conduct a hearing? It is better to put such a person
in an administrative position. That way he does not have to go near a
court room. But in a rat race, the biggest rat always manages to winnow
his way to the top.
Linda de Soto’s career had not bottomed out
before joining SSA. She was the Social Security Administration’s General
Counsel. She is an experienced attorney who has held a number of senior
management positions in the private and federal sector. She specialized
in procurement, bilateral and multilateral negotiations, conflict
resolution and organizational change. Most recently, she was the Country
Director for the U.S. Agency for International Development’s (AID)
Office of Transition Initiatives in Nigeria. Before that, she served as
the General Counsel of the U.S. Trade and Development Agency and as
Deputy Assistant General Counsel for Contract and Commodity Management
for the U.S. Agency for International Development (AID) in Washington,
D.C.
Not all judges are paid to judge. One-fifth of SSA’s judges
do not hold hearings. That is one out of five judges who do not judge.
Twenty percent of the judges on the SSA’s payroll do not conduct
hearings. Some judges are allowed to carry a reduced work load. An an
example, judges who are union representatives are not counted as full
judges. They are counted as one fourth of a judge. If the average
full-time judge is required to publish 60 decisions per month, then ALJs
who are union representatives are only required to publish 12 to 15
decisions per month. All ALJs earn between $164,000.00 and $169,000.00
per year. That works out to roughly between $14,500.00 and $16,000.00
per month to decide 12 to 15 cases. That translates to loosely $1,250.00
per decision per month. http://www.amazon.com/Judge-London-Steverson/e/B006WQKFJM
Some
of these judges, paralegals, and legal secretaries once took their
comfortable life-styles for granted, but not anymore. All of that has
changed, since Lisa de Soto and Judge Frank Cristaudo started forcing
judges into retirement. All of this has occurred at the same time as the
American economy has taken a steep downturn. Judges have lost homes and
families.
Many judges, lawyers, paralegals, administrative staff
workers are finding out what it is like to be without a job. Many for
the first time in their lives cannot find any work. To make matters
worse, most of them are old people. They are loosing their jobs, homes,
cars, cell phones, health insurance, and middle-class life styles never
to be regained. At their ages no one will hire them. Summer vacations
and having dinner out have become distant memories.
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/
Age
makes it more difficult to find a job. People who did everything right
professionally have reached old age and find themselves on the verge of
destitution. Middle level managers and accountants can not get
interviews at McDonald’s for a job as a cashier.
Long years of
experience are no longer an asset. The job skills that older workers
have acquired are no longer needed in today’s job market. Employers
today are looking for younger workers without health problems and who
know how to use the many word-processing programs used to produce legal
documents and client letters.
Richard Eggers is a 68 years old
resident of Des Moines, Iowa. He was fired in July 2012 from his job as a
customer service representative at Wells Fargo Home Mortgage because of
an incident that occurred in 1963, over 50 years ago, according to the
Des Moines Register. He put a cardboard cutout of a dime in a washing
machine. He admits it was a stupid stunt, but he cannot believe that he
was fired because of it 50 years later. Big banks have been firing older
low-level employees like Eggers since new federal banking employment
guidelines were enacted in May 2011 and new mortgage employment
guidelines took hold in February, it was reported in the Des Moines
Register.
The tougher standards are meant to clear out older
executives and mid-level bank employees and anyone guilty of
transactional crimes — such as identity theft and money laundering — but
are being applied across the board against older employees.
Wells
Fargo confirmed Eggers’ termination. “The expectations that have been
placed on us and all financial institutions have never been higher,”
said Wells Fargo spokeswoman Angela Kaipust.
Banks have fired
thousands of workers nationally, said Natasha Buchanan, an attorney in
Santa Ana, Calif., who has helped some of the workers regain their
eligibility to be employed.
There is no government or industry data on the number of older bank workers fired due to criminal background checks.
The
Federal Deposit Insurance Corp. provides a waiver process employees can
follow to show they’re still fit to work at a bank despite a past
criminal conviction, but it usually takes six months to a year to be
approved. There is also a process for automatic waiver that works more
quickly but is limited to people who were sentenced to less than year of
jail time and never spent a day locked up. Eggers was jailed two days.
Sadly, he doesn’t qualify. So he joins the ranks of the older unemployed
who may never find another job.
America is fast becoming a land
where there are no jobs for old people. Government employees from the
Senior Executive Service to the lowliest General Service employee, along
with Fortune 500 middle management executives, and super lawyers from
multi-national law firms are being shown the door. America has more
lawyers per capita than any other country in the world. Americans love
to sue each other.
In the most litigation-happy country in the
world, lawyers are being fired. Today’s recession is not like the
recession of the 1930′s. Typically when the economy goes down, lawsuit
filings go up, according to a former super lawyer who was let go from a
prominent law firm. The only kind of legal filings that have gone up in
this economy are bankruptcy cases. When the housing bubble bursted, the
number of people filing for bankruptcy went through the roof. Lawsuit
filings in general have gone down.
You may not feel old, but
Social Security Regulations define who is an old person. Because of a
vigorous and healthy life style, you might feel much younger than you
are. Your chronological age could be 55, and your friends might flatter
you by saying 55 today is the new 45. However, government and business
managers have regulations that tell them whether you are an old person.
According to those regulations, if you are age 55 or older, then you are
an old person. You will not be considered approaching retirement age
until you are 62.
Many Americans will not have a job after age 55.
The American middle class has suffered a direct hit buy this recession.
Social Security retirement benefits have become the number one
retirement plan in America. Those under age 62 who are too young to
collect retirement benefits are applying for Social Security Disability
Benefits in record numbers.
The waiting time for a disability case
to be decided may be as long as five years. In that period of time
families have lost their homes, small business owners have lost their
businesses, and ended up living on the streets using credit cards to buy
food. Depression and anxiety are at an epidemic level.
The Obama
Administration bailed out Wall Street, but not main street. Bankers and
Wall Street traders are feeling no pain. Federal Reserve Chairman Ben
Bernanke has said that he feels the pain of the older aged workers, who
represent about 41 percent of the 12.8 million unemployed workers. Many
of the chronic unemployed older people have given up and stopped looking
for work. Their job skills have atrophied. Their business contacts have
dried up. They have lost their homes and cannot afford descent
apartments based on their Social Security Benefits and Food Stamp
payments. As they struggle to survive on food stamps, credit cards and
Social Security, without cars or cell phones, these older unemployed
former middle-class workers are losing their dignity and some are even
committing suicide.
Jane Durant is a 57 year old legal secretary
at a large law firm in Pennsylvania. After spending 10 years at a
smaller law firm, she took a job at a larger firm 11 years ago. In 2009
she was laid off when her law firm underwent a large reduction in force
(RIF). Today she is still unemployed. She has exhausted her severance
package, used up 99 weeks of unemployment benefits, and has been forced
to dip into her retirement funds. She has cut back to one meal a day and
has applied for food stamps. Her food stamp application was refused
because she still had a small savings account. After 60 job interviews
and no offers of even part-time work, she believes she is a victim of
age discrimination.
Claude Davis was a California attorney living
the good life trading up in real estate, going from a smaller house to a
larger one. He was riding the real estate bubble. He bought his last
house for over a million dollars with no money down and no interest with
an adjustable rate mortgage for the first five years. At the end of
five years he would be facing a large balloon payment that would come
due. This was not the first time he had purchased a home under these
terms. As long as he was working he expected to be able to come up with
the cash. He never expected to lose his job. He thought that legal jobs
were recession proof. Then the unexpected happened. He was terminated.
For a while he managed to get by doing small contracts and by dipping
into his retirement funds. When the balloon mortgage payment came due,
he was not able to make the payment. He lost his house and his middle
class life style. He thinks he will never be able to get another legal
job like his last one because he can no longer work the 12 to 14 hour
days that are required to get ahead in most law firms. Younger more
recent law school graduates are grabbing all the starting legal jobs.
Claude Davis is 55 years old and he believes that he also is a victim of
age discrimination.
Their misfortune has broader consequences for
society as a whole as well as for America’s standing in the world.
These former lawyers, administrative law judges, paralegals, corporate
executives, and small business owners who are struggling to survive in
this hostile economy may be the canaries in the coal mine for America.
Their social and economic conditions will have broader and more
far-reaching consequences for America and could signal that we are
slipping into a welfare society and a less prestigious nation.
In
our weakening, job-starved economy what can older unemployed former
workers expect in the next 4 years? Does it matter who is elected
President?
How would older unemployed Americans answer the question “Are you better off now than you were 4 years ago”?
Governor
Martin O’Malley, (D-Md.) an a speaker at the Democratic National
Convention said “NO!” He said the country is worse off, and by
implication that older Americans are worse off. Gov. O’Malley spoke
during a televised interview on CBS Sunday.
What applies to the
general population, goes double for the older unemployed American
workers. What have the last 4 years brought? Since November 2008,
national unemployment has gone from 6.8% to8.3%. Unemployment for old
Americans still looking for work is estimated to be above 33% and still
climbing.
Since November 2008 the Poverty Level in the USA has
gone from 13% to 15%, and that is also rising at a breath-taking pace.
In the last 4 years the numbers of Food Stamp recipients have increased
from 30.9 million to 44.7 million.
That number would be greater if
every older American who applied were granted Food Stamps.But, not
everyone who applies receives Food Stamps. Take for an example Jane
Durant the 57 year old legal secretary in Pennsylvania
who was turned down because had not used up all of her savings account.
When she becomes completely destitute, she will qualify for Food Stamps.
That
will contribute to a Federal Debt that was $10 Trillion four years ago,
but has grown to $16 Trillion today. And the price of a gallon of gas
has almost doubled at the pump.
A second wave of mortgage
foreclosures has hit nationwide like a giant tsunami. In Maryland alone
20,000 new foreclosures were filed in the 1st Quarter of 2012. More than
37million homes have been lost to foreclosure in the last 4 years. The
States with the highest foreclosure rates are CA, FL, NV, OH, PA, and
Md..
Since November 2008 the Poverty Level in the USA has gone
from 13% to 15%, and that is also rising at a breath-taking pace. The
poorest city in America is Redding, PA where the Poverty Rate is 41.3%.
According to the U. S. Census Bureau the Poverty Rate is 33% in Detroit,
MI; and 30% in Buffalo, NY; 28% in Cincinnati,OH; 27% in Cleveland,OH;
27% in Miami, FL; 27% in St. Louis, MO; 26% in El Paso, TX; 26% in
Milwauki, WI; and 25% in Philadelphia, PA.
Poverty and
unemployment, along with escalating high school drop out rates are
fueling crime across America. On the first day of school in Baltimore,
MD a student was shot in the cafeteria with a shot gun. Police shot 8
innocent people on their way to work in New York City in front of the
Empire State Building. There were mass shootings at a movie theater in
Denver, CO and at a Sikh Temple in Milwaukee, WI. And Chicago,IL has had
a record 31% increase in murders this year.
What is driving the
American economy over the cliff? What is turning the American Dream into
a real nightmare for older Americans who cannot find work? Who will
save America and old unemployed Americans from poverty? These are people
who were the “middle class” for the first 50 years of their lives.
Older Americans are looking for a white knight who can save them from
spending their senior years in poverty. They want someone who will avoid
the fiscal cliff. Will it be a white knight with black stripes, or will
it be a black knight with white stripes?
After last weeks
blistering appraisal by the Federal Reserve Bank Chairman, Ben Bernake,
of the amount of damage the high unemployment has inflicted on our
economy and that it will last for many years to come, is there any
wonder that old people feel hopeless, betrayed, and mad as hell?
The
wisdom in working for the federal government at the highest levels has
become akin to that of marrying King Henry VIII -- it's great to be
asked, but there's always that likelihood that eventually, your head
will roll.
To all parties involved in a trial, the slam of a gavel should indicate that justice has been served. Unfortunately, this is often not the case with Social Security Disability
(SSDI and SSI) appeals. A system designed to serve society’s vulnerable
has morphed into a benefit bonanza that costs taxpayers billions of
dollars more than it should. The disability trust fund will become
insolvent in 2016, and Congress would be wise to begin much needed reform.
A disability applicant whose claim is rejected during the Social Security Administration’s (SSA) first two stages ( before State Disability Determination Services) can appeal
the decision to administrative-law judges (ALJ). These judges must
impartially balance the claims of the applicant against the interests of
taxpayers.
Over the past decade judicial impartiality has declined significantly,
as many administrative-law judges uncritically approve most claims. In
2008 judges on average approved about 70% of claims before them,
according to the Social Security Administration. Nine percent of judges approved more than 90% of benefit requests that landed on their desks.
Do nine out of every 10 applicants appealing denied claims need societal support? There are reasons for skepticism. The data show that judges who are generous in granting benefits are consistently generous over time—which is suspicious,
since each year they should hear a random set of new cases. The more
discerning judges—those who award benefits less than 90% of the time—are
more unpredictable from year to year.
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
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.
“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.”
If the judges with
award rates topping 90% are removed from the data, the rate of denial
increases by 2%-3% annually. That amounts to 98,000 claims from 2005-11.
Assuming an average lifetime award of $250,000, taxpayers would have
saved $23 billion over those six years had the worst judges left the
bench. If we lower the threshold to exclude judges with award rates
north of 85%, these savings increase to $41 billion.
Former Social Security Commissioner Michael Astrue, who took office in 2007, made much-needed changes. Incompetent incumbents
saw their influence diluted by new judges drawn from fresh candidate
lists. Judicial decisions are now randomly reviewed to ensure that the
court remains impartial and fair to taxpayers. Judges were limited to
hearing 1,000 cases a year (the figure has since been lowered to 700),
and individuals are allowed only one disability application at a time.
Mr. Astrue’s reforms have produced good results. In 2011 judges with
award rates exceeding 90% heard a mere 4% of all cases, a 63.6% decline
from 2008. But Mr. Astrue’s term expired in 2013, and these changes can easily be undone, either intentionally by future administrators, or unintentionally as bad habits slip back into the system.
His program to increase accountability and judicial turnover should be made permanent. Congress should also institute 15-year term limits for judges, who currently enjoy lifetime tenure,
to ensure that fresh legal minds are joining the stale judicial
aristocracy. A term of a decade and a half is long enough to insulate
judges and prevent undue political influence.
The system faces a huge backlog, made worse by claimants who play adjudication roulette, filing and then withdrawing appeals in hopes of drawing a generous judge.
Congress can limit this gamesmanship by allowing only one application
per claimant in a three-year period. Because judges must marshal more
documentation for a denial than an approval, they have an incentive to
grant benefits to keep the system chugging along. The agency can fix
this by further limiting the number of cases each judge must decide to
500 from 700.
The system is further complicated
because even if a claimant has legal counsel, the judge must advocate
on the claimant’s behalf. This dual role should be ended. Most
claimants—85%—now have third-party representation. These professionals
should be held responsible for getting supporting materials into court
expeditiously and completely so the record can be closed in a timely manner.
Even under better legal rules, judges will still face rigid and outdated guidelines for granting benefits. The framework they must follow—known as the Medical Vocational Grid (known as The Listings)—is
formulaic to the point of senselessness. For instance, the bar to
benefits approval is lower for someone who doesn’t speak English, on the
theory that it is difficult to find a job without the language. But
that English rule is also applied to claimants from Puerto Rico, where
the language of business is Spanish.
These guidelines (in The Listings)
also do not give due consideration to actual labor market experience,
dictating a looser approval standard for someone with only a high-school
degree, even if the person has succeeded in the labor force for
decades.
The framework (of The Listings) was developed in the late 1950s, for the previous generation’s workforce, and hasn’t been updated since 1978.
Decades ago workers ages 50 or 55 might have been considered retiring,
but this is no longer generally the case. Novel job-training programs
also make it easier than ever for workers to move into new fields and
make up for low levels of education, and new disability criteria would
account for these changes.
These solutions would begin to deliver meaningful reform to Social Security disability awards. They can restore dignity and efficacy to a troubled system.
Over the past decade judicial impartiality has
declined significantly, as many administrative-law judges uncritically
approve most claims. In 2008 judges on average approved about 70% of
claims before them, according to the Social Security Administration.
Nine percent of judges approved more than 90% of benefit requests that
landed on their desks.Do nine out of every 10 applicants
appealing denied claims need societal support? There are reasons for
skepticism. The data show that judges who are generous in granting
benefits are consistently generous over time—which is suspicious, since
each year they should hear a random set of new cases. The more
discerning judges—those who award benefits less than 90% of the time—are
more unpredictable from year to year.
(Photo:
Getty Images/Illustration Works)
If the judges with award rates topping 90% are removed from
the data, the rate of denial increases by 2%-3% annually. That amounts
to 98,000 claims from 2005-11. Assuming an average lifetime award of
$250,000, taxpayers would have saved $23 billion over those six years
had the worst judges left the bench. If we lower the threshold to
exclude judges with award rates north of 85%, these savings increase to
$41 billion.
Former Social Security Commissioner
Michael Astrue,
who took office in 2007, made much-needed changes. Incompetent
incumbents saw their influence diluted by new judges drawn from fresh
candidate lists. Judicial decisions are now randomly reviewed to ensure
that the court remains impartial and fair to taxpayers. Judges were
limited to hearing 1,000 cases a year (the figure has since been lowered
to 700), and individuals are allowed only one disability application at
a time.
Mr. Astrue’s reforms have produced good results. In
2011 judges with award rates exceeding 90% heard a mere 4% of all cases,
a 63.6% decline from 2008. But Mr. Astrue’s term expired in 2013, and
these changes can easily be undone, either intentionally by future
administrators, or unintentionally as bad habits slip back into the
system.
His program to increase accountability and judicial
turnover should be made permanent. Congress should also institute
15-year term limits for judges, who currently enjoy lifetime tenure, to
ensure that fresh legal minds are joining the stale judicial
aristocracy. A term of a decade and a half is long enough to insulate
judges and prevent undue political influence.
The system faces a
huge backlog, made worse by claimants who play adjudication roulette,
filing and then withdrawing appeals in hopes of drawing a generous
judge. Congress can limit this gamesmanship by allowing only one
application per claimant in a three-year period. Because judges must
marshal more documentation for a denial than an approval, they have an
incentive to grant benefits to keep the system chugging along. The
agency can fix this by further limiting the number of cases each judge
must decide to 500 from 700.
The system is further complicated
because even if a claimant has legal counsel, the judge must advocate on
the claimant’s behalf. This dual role should be ended. Most
claimants—85%—now have third-party representation. These professionals
should be held responsible for getting supporting materials into court
expeditiously and completely so the record can be closed in a timely
manner.
Even under better legal rules, judges will still face
rigid and outdated guidelines for granting benefits. The framework they
must follow—known as the Medical Vocational Grid (known as The Listings)—is formulaic to the
point of senselessness. For instance, the bar to benefits approval is
lower for someone who doesn’t speak English, on the theory that it is
difficult to find a job without the language. But that English rule is
also applied to claimants from Puerto Rico, where the language of
business is Spanish.
These guidelines (in The Listings) also do not give due
consideration to actual labor market experience, dictating a looser
approval standard for someone with only a high-school degree, even if
the person has succeeded in the labor force for decades.
The
framework (of The Listings) was developed in the late 1950s, for the previous generation’s
workforce, and hasn’t been updated since 1978. Decades ago workers ages
50 or 55 might have been considered retiring, but this is no longer
generally the case. Novel job-training programs also make it easier than
ever for workers to move into new fields and make up for low levels of
education, and new disability criteria would account for these changes.
These
solutions would begin to deliver meaningful reform to Social Security
disability awards. They can restore dignity and efficacy to a troubled
system. (BY Mark J. Warshawsky And Ross A. Marchand (Mr. Warshawsky is a visiting scholar at the Mercatus
Center of George Mason University and a former member of the Social
Security Advisory Board from 2006 to 2012. Mr. Marchand is a first-year
economics graduate student at George Mason University.)
Disability Claim Denied? Find the Right Judge.
Nine percent of the judges who hear appeals grant benefits 90% of the time, costing taxpayers tens of billions.
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