Reversed and Remanded

TALLEY v. ASTRUE

BRENDA L. TALLEY, Plaintiff, v. MICHAEL J. ASTRUE, Commissioner, Social Security Administration, Defendant.

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MEMORANDUM OPINION AND ORDER

BETH DEERE, Magistrate Judge.

Plaintiff Brenda L. Talley appeals the final decision of the Commissioner of the Social Security Administration (the "Commissioner") denying her claim for Disability Insurance benefits ("DIB") under Title II of the Social Security Act (the "Act") and Supplemental Security Income ("SSI") under Title XVI of the Act. For the following reasons, the decision of the Commissioner must be REVERSED and REMANDED.

I. Background:

Ms. Talley filed for DIB and SSI on May 15, 2008, claiming disability since June 23, 2007. Ms. Talley alleged that she was disabled as a result of diabetes, arthritis, anxiety, morbid obesity, malabsorption syndrome, agoraphobia, hypertension, supraventricular tachycardia, obsessive compulsive disorder, neuropathy, retinopathy, endometriosis, degenerative joint disease, chronic insomnia, and deep vein thrombosis. After denials initially and upon reconsideration, Ms. Talley requested a hearing before an Administrative Law Judge ("ALJ").  The ALJ held a hearing on July 6, 2009, at which Ms. Talley appeared with her attorney and testified.  The ALJ also heard testimony from a vocational expert.

The ALJ issued a decision on November 4, 2009, finding that Ms. Talley was not disabled for purposes of the Act. On January 20, 2011, the Appeals Council denied her request for review, making the ALJ's decision the Commissioner's final decision.

At the time of the hearing before the ALJ, Ms. Talley was 47 years old and was living alone in a house next door to her mother and brother. (Tr. 19, 40-41) She had previous work as a registered nurse.

II. Decision of the Administrative Law Judge:

The ALJ followed the required five-step sequence to determine: (1) whether the claimant was engaged in substantial gainful activity; (2) if not, whether the claimant had a severe impairment; (3) if so, whether the impairment (or combination of impairments) met or equaled a listed impairment; (4) if not, whether the impairment (or combination of impairments) prevented the claimant from performing past relevant work; and (5) if so, whether the impairment (or combination of impairments) prevented the claimant from performing any other jobs available in significant numbers in the national economy. 20 C.F.R. §§ 404.1520(a)-(g); 416.920(a)-(g).

The ALJ found that Ms. Talley had not engaged in substantial gainful activity since her alleged disability onset date but noted that she had received unemployment benefits into the first quarter of 2008, indicating she was available and willing to return to work during that period.  The ALJ also found that Ms. Talley had the following severe impairments: diabetes mellitus, back disorder (degenerative arthritis), obesity, and mood disorder.  According to the ALJ, Ms. Talley did not have an impairment or combination of impairments, however, that met or equaled an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1526, 416.926).

The ALJ determined that Ms. Talley retained the residual functional capacity ("RFC") to perform sedentary work except as follows: she could occasionally lift/carry ten pounds and frequently lift/carry less, stand/walk for two hours; occasionally climb, balance, crawl, kneel, stoop, and crouch. She had moderate restriction in her ability to maintain the activities of daily living, social functioning, and concentration, persistence, and pace. She was moderately limited in her ability to understand, remember, and carry out detailed instructions; make judgments on simple work related decisions; interact appropriately with the public; and respond appropriately to usual work situation and routine work changes. She could perform work where interpersonal contact was incidental to the work performed, complexity of tasks is learned and performed by rote, with few variables, little judgment was required, and supervision was simple, direct, and concrete.

The ALJ concluded that Ms. Talley could not perform her past relevant work as a registered nurse. (Tr. 58) Relying on the vocational expert's responses to interrogatories, the ALJ concluded Ms. Talley could perform work as a production worker, credit authorizer, or interviewer and that she was not disabled within the meaning of the Act.
III. Analysis:

A. Standard of Review.In reviewing the Commissioner's decision, this Court must determine whether there is substantial evidence in the record as a whole to support the decision.  Substantial evidence is something less than a preponderance, but it must be, "sufficient for reasonable minds to find it adequate to support the decision."

In reviewing the record as a whole, the Court must consider both evidence that detracts from the Commissioner's decision and evidence that supports the decision; but, the decision cannot be reversed, "simply because some evidence may support the opposite conclusion." 

B. Severe Impairments and Residual Functional Capacity

Ms. Talley complains that the ALJ erred by failing to find that her diabetic retinopathy, supraventricular tachycardia (SVT), peripheral neuropathy, and hip pain were severe impairments.  She also complains that the ALJ's residual functional capacity assessment is not supported by substantial evidence in the record.

Ms. Talley had the burden of showing that her impairments were severe; however, this burden is not a great one.  Rather, step two of the sequential evaluation process provides a de minimus screening device to dispose of groundless claims. 

An impairment is severe if the effect of the impairment on the claimant's ability to perform basic work is more than slight or minimal.  Basic work activities are the abilities and aptitudes necessary to do most jobs, such as hearing, standing, walking, sitting, lifting, handling, remembering simple instructions, using judgment, and dealing with changes in a routine work setting. 20 C.F.R. §404.1521. The Commissioner must resolve any doubt as to whether the required showing of severity has been made in favor of the claimant. SSR 85-28 at *4 (1985).

Once it is determined that an individual has a severe impairment for purposes of step two, the combined effect of all impairments are considered in determining an individual's residual functional capacity, regardless of whether the impairments are labeled severe or non-severe. 20 C.F.R. §§ 404.1545(e) and 416.945(e).

In assessing residual functional capacity, the ALJ must give appropriate consideration to all of the claimant's impairments, and base the assessment on competent medical evidence. Partee v. Astrue, 638 F.3d 860, 865 (8th Cir. 2011) (citations omitted). An ALJ should consider the quality of the claimant's daily activities and the ability to sustain activities, interests, and relate to others over a period of time. The frequency, appropriateness, and independence of the activities must also be considered. Boettcher, 652 F.3d at 866 (internal quotation marks and citation omitted).

1. Diabetic Retinopathy

Ms. Talley claims that the ALJ erred by failing to find that her diabetic retinopathy was a severe impairment. The ALJ noted that Ms. Talley had been referred for an evaluation of diabetic retinopathy and stated that her diabetes could be expected to cause vision changes.  But he did not find her diabetic retinopathy to be a severe impairment; nor did he discuss Ms. Talley's vision when assessing her residual functional capacity.

The Commissioner does not dispute that Ms. Talley was diagnosed with diabetic retinopathy, but argues that the diagnosis, by itself, does not indicate a severe impairment. This statement of the law is true, as far as it goes. However, the ALJ still had a duty to consider Ms. Talley's diabetic retinopathy when considering her residual functional capacity, and it appears that he failed to do so.

In November, 2009, Ms. Talley was referred for an eye examination after complaints that her eyes were hurting. The records from Ms. Talley's visit to an opthamologist in November, 2008, indicate that she had a history of retinal bleeding and glaucoma. In a narrative report dated November 13, 2009, Gary Russell, M.D., a physician at River Valley Medical Center, wrote that, according to her ophthalmologist, Ms. Talley had diabetic retinopathy with marked decrease in her vision and at least one retinal hemorrhage that was treated with laser therapy.  On November 19, 2009, Ms. Talley was seen at River Valley Christian Clinic ("River Valley") complaining of vision problems. She was referred to an eye doctor.

At the hearing, Ms. Talley testified that she had glasses, but that they were for distance vision and not for reading.  She stated that she was no longer able to read the newspaper because her vision was impaired.  However, she was able to read a large-print Bible. She also testified that one reason she used a cane was to help her deal with her visual impairment because she had difficulty detecting depth and color change.

In spite of considerable evidence in the record indicating that Ms. Talley's diabetic retinopathy has more than a minimal effect on her ability to work, it does not appear that the ALJ considered it when assessing her residual functional capacity. The ALJ found that Ms. Talley was capable of working as a production worker which, according to the Dictionary of Occupational Titles, would require her to frequently use near acuity and depth perception, and to occasionally use color vision. Employment and Training Admin., U.S. Dep't of Labor, Dictionary of Occupational Titles (4th ed. rev. 1991).

Further, it does not appear that any consulting or examining source offered an opinion about the extent of visual limitation caused by Ms. Talley's retinopathy. Remand is necessary for the ALJ to more fully and fairly develop the record regarding the extent of Ms. Talley's visual impairment, if any.

2. Peripheral Neuropathy

On November 7, 2007, Kenneth Turner, M.D., diagnosed Ms. Talley with diabetic peripheral neuropathy. On September 18, 2008, Ms. Talley complained of numbness and tingling during her visit to River Valley.

At the hearing, Ms. Talley testified that her feet and legs were cold and numb bilaterally. She stated that she had problems with strength and grip, could not open jars, and dropped things.  She had difficulty holding a glass of milk because of problems with her grip.  She also stated that her peripheral neuropathy caused her knees to buckle, leading her to use a cane. (Tr. 30) She had difficulty getting up and down the three steps leading to her house.

In his opinion, the ALJ acknowledged Ms. Talley's diabetic neuropathy and considered whether there was documentation of neuropathy in two extremities significant enough to meet a Listing.  He also noted that her diabetes could cause "tingling and numbness" in the hands or feet.

When assessing Ms. Talley's residual functional capacity, however, the ALJ focused his assessment only on the neuropathy in her feet. He noted that she had reported numbness, tingling, and pain in her feet.  The ALJ stressed, however, that the orthopedic specialist had found that she had normal gait, that her neurovascular status was intact, and that she had positive straight leg tests.  The ALJ concluded that Ms. Talley could sit for six hours; stand/walk for two hours; and could occasionally climb, balance, crawl, kneel, stoop, or crouch.

The ALJ did not address the evidence in the record indicating that Ms. Talley's peripheral neuropathy also affected her hands. He did not limit her residual functional capacity in any way related to her hands and concluded she could perform work as a credit authorizer and interviewer — jobs that require frequent handling.

The ALJ's failure to fully account for Ms. Talley's peripheral neuropathy in assessing residual functional capacity is error. Again, it does not appear that any examining medical professional had ordered a nerve conduction study of Ms. Talley or had offered an opinion as to the extent of the limitation caused by her peripheral neuropathy. On remand, the Commissioner should consider the effect, if any, that Ms. Talley's peripheral neuropathy in her legs, hands, and feet has on her residual functional capacity.

3. Hip Pain

Ms. Talley alleges that it was error for the ALJ not to conclude that her hip pain was a severe impairment. The ALJ acknowledged Ms. Talley's complaints of hip pain at various points in his opinion. He noted that Ms. Talley complained of hip pain to Dr. Turner, who recorded in treatment notes that Ms. Talley had a right hip that "pops out at times."

The ALJ also acknowledged that Ms. Talley was examined by Owen Kelly, M.D., at Arkansas Orthopaedic Institute in November, 2007.  Dr. Kelly took x-rays of Ms. Talley that revealed some degenerative disc disease.  On examination, he noted that she had normal gait, but tenderness of the greater trochanter bursa and around the lumbosacral area. He diagnosed low back pain, degenerative disc disease, and right leg radiculopathy. He ordered an MRI of Ms. Talley's lumbar spine, but she reported to Dr. Turner that she was unable to have the test because of her financial situation.

On October 2, 2008, Ms. Talley complained of hip pain during a visit to Stanley Teeter, M.D., at River Valley.  She was diagnosed with degenerative arthritis in her hip. Dr. Teeter prescribed Etodolac but, as the ALJ noted, that medication was discontinued due to gastritis.

At her hearing, Ms. Talley testified that Dr. Teeter had told her she had "bone against bone" on her right hip, and that her hip socket was degenerated.  She stated that he had advised her to keep as much weight as possible off of it, so she used a cane.  Additionally, Ms. Talley testified that she was not able to bend down to pick up objects that dropped on the floor.  She relied on her brother or mother to come to her house and do that for her.

The ALJ discounted the effects of Ms. Talley's hip pain, noting that no surgical treatment was recommended. However, Dr. Kelly, the orthopedic specialist, had ordered an MRI in order to have a complete work-up on Ms. Talley, but she was not able to have the test because of her limited financial resources. She never returned to Dr. Kelly, but instead continued to seek treatment for hip pain from her general practitioners at the free clinic.

Further, the ALJ noted that none of Ms. Talley's doctors had restricted her activities. However, Ms. Talley's testimony contradicts this assertion. She testified that Dr. Teeter had advised her to keep as much weight off of her hip as possible. The ALJ's opinion does not offer any explanation for discrediting this testimony.

Further, Dr. Russell, one of Ms. Talley's treating physicians, stated that Ms. Talley was unable to sit or stay in one position for an extended period of time. While the ALJ did not have Dr. Russell's assessment at the time he wrote his opinion, the Court may consider that opinion, which was available to, and considered by, the Appeals Council. The court's role is to determine whether the ALJ's decision is supported by substantial evidence including the evidence submitted after the determination was made.

The ALJ's conclusion that Ms. Talley could perform sedentary work and could occasionally climb, balance, crawl, kneel, stoop, and couch is not supported by substantial evidence in the record.

4. Mental Impairments

Ms. Talley also claims that the ALJ erred in assessing her mental impairments. The ALJ concluded Ms. Talley had moderate restriction in activities of daily living; in her social functioning; and in concentration, persistence, and pace.  He noted that she was hospitalized in 2001 following a suicide attempt.  The ALJ found that Ms. Talley's mood disorder was a severe impairment, but he concluded that she maintained the residual functional capacity for unskilled work.

Ms. Talley points out that the ALJ declined to discuss the mental consultative examination performed by Don Ott, Psy.D., on September 17, 2008.  Dr. Ott observed that, during the examination, Ms. Talley's affect was rigid and flat. He stated that she made very little eye contact, and that her voice was tired and resigned. She seemed distracted and talked excessively during the evaluation.  Dr. Ott concluded that Ms. Talley's social interaction was "fairly limited."  Her concentration was impaired, and her capacity to cope with the mental demands of work was deficient. Dr. Ott diagnosed Ms. Talley with major depressive disorder, recurrent, moderate and assigned a GAF score of 50-60.

The Commissioner points out that the ALJ addressed Dr. Ott's opinion by stating, "the opinions of the claimant's examining and treating physicians are given substantial weight consistent with 20 C.F.R. 404.1527." Further, he argues that Dr. Ott's opinion is not contradictory to the ALJ's assessment of Ms. Talley's residual functional capacity, pointing out that Dr. Ott "never opined as to Plaintiff's actual limitations in concentration or any work-related domain."

The ALJ's handling of Dr. Ott's opinion was inadequate. As explained in Social Security Ruling 96-6p, administrative law judges and the Appeals Council are not bound by findings made by State agency or other program physicians and psychologists, but they cannot ignore these opinions and must explain the weight given to the opinions in their decisions. SSR 96-6p (1996). Dr. Ott's opinion that Ms. Talley's concentration was impaired and that her ability to cope with the mental demands of work was deficient should have at least been addressed by the ALJ in his opinion.

The ALJ's assessment of Ms. Talley's treatment records was also deficient. In his opinion, the ALJ based his residual functional capacity assessment on the July, 2008 assessment of Richard H. Sundermann, Jr., M.D. (Tr. 443-44) Dr. Sundermann recounted Ms. Talley's history of depression and anxiety. He noted that she had been unable to afford Effexor and had switched to a generic, but had been unable to afford even an adequate dose of the generic drug. He diagnosed Ms. Talley with moderate, recurrent major depressive disorder and prescribed Effexor, which he could supply to her through a patient assistance program.

The ALJ states the Effexor resulted in fewer suicidal thoughts and an improved mood. He summarized the remaining treatment notes by stating that Ms. Talley continued to attend therapy sessions and medication management, "with a few more changes in the medications and improvement of her mood." Based on this analysis of Ms. Talley's treatment records, the ALJ concluded that she could perform unskilled work.

The ALJ's assessment that Ms. Talley's depression and anxiety were controlled with medication and therapy is not supported by substantial evidence in the record. In April, 2008, Ms. Talley complained of increased anxiety and depression to Dr. Turner. He referred her to Counseling Associates noting that, "[s]he is not actually suicidal but needs more intensive care for depression than I can provide alone."  In May of 2008, Ms. Talley called Dr. Turner's office seeking samples of Effexor because she could not purchase her medication.  He was unable to provide samples of Effexor and changed her medication to Cymbalta.

On June 4, 2008, Ms. Talley presented to Counseling Associates complaining of anxiety and depression since she was a child. She reported daily symptoms of depression and anxiety, stating that her social anxiety was so severe that she remained isolated and felt like a failure. She was initially diagnosed with major depressive disorder, recurrent, moderate, without psychotic features, and anxiety disorder with agoraphobia. She was assigned a GAF score of 50. (Tr. 331-336)

On July 9, 2008, Dr. Sundermann evaluated Ms. Talley. He noted that she had a difficult time digesting her food and medicine because she had undergone gastric bypass surgery in 2001. He stated that Prozac, which Ms. Talley had previously taken with good result, had stopped working. She reported a failed suicide attempt years earlier, which had resulted in her being psychiatrically hospitalized for seven days.  Dr. Sundermann prescribed Effexor XR and therapy.

On August 26, 2008, Ms. Talley began therapy with Erin Willcutt, LAC. On September 8, 2008, Ms. Talley was evaluated by Sam Hernandez, APN. Progress notes from the visit indicate that Ms. Talley reported that her depression seemed worse and that she wanted to stay in bed most of the time.  She was observed to have a flat affect and admitted to having fleeting suicidal thoughts with a plan at times. Nurse Hernandez increased her Effexor, and Ms. Talley agreed to allow her brother to help her manage her medications.

During a therapy session on September 12, 2008, Ms. Talley seemed to be doing better.  But on October 1, 2008, her therapist noted that her response to treatment has been "marginal," and her anxiety level was very high.  On October 6, 2008, Ms. Talley returned to Nurse Hernandez, who noted that she seemed to be doing quite a bit better.

Ms. Talley returned to see Ms. Willcutt on October 14, 2008. Ms. Willcutt noted that Ms. Talley seemed to be doing a little better, but still has difficulty getting motivated to do things to improve her situation.  During visits on November 12, 2008, and December 9, 2008, Ms. Talley reported doing better.  On December 11, 2008, Nurse Hernandez diagnosed major depressive disorder, recurrent, moderate and continued her on Effexor and individual therapy.

On January 15, 2009, Ms. Talley reported feeling a little more depressed, but she returned on February 4, 3009, to report feeling better.

Ms. Willcutt noted that at her session on March 6, 2009, Ms. Talley had a depressed mood. She noted that Ms. Talley was not doing as well as she had been at her last visit and reported feeling very depressed after her mother had yelled at her.

Ms. Talley was examined by Roy Ragsdill, M.D., on April 7, 2009. Ms. Talley complained to Dr. Ragsdill of problems with her mother and social anxiety. He suggested adding dependent personality traits to her diagnosis and noted that Ms. Talley had only a "partial response to Effexor" but that he was "reluctant" to change her medications.  He continued her medications and suggested an increase in therapy to weekly.

Ms. Willcutt reported that on April 21, 2009, Ms. Talley's response to therapy was "minimal" and her thought patterns were "very negative." Ms. Willcutt suggested that they increase their sessions.

On May 5, 2009, Ms. Talley was noted to have a very depressed mood, negative thought process, and very tearful behavior. Ms. Talley admitted to thoughts of wanting to die and not wanting to go on, but denied any plan or intent to harm herself. Ms. Willcutt discussed possible acute care with Ms. Talley, but she rejected the idea because she had formerly worked at the acute unit and felt this would make her feel like more of a failure.

Ms. Willcutt noted that cognitive therapy was minimally successful and noted her intention to meet with her case manager and discuss the case with Ms. Talley's psychiatrist.  Ms. Willcutt recommended an increased level of care for Ms. Talley with weekly therapy and meetings twice per month with her case manager.

Notes from Ms. Talley's May 20, 2009 therapy session indicate that she exhibited depressed mood, negative thought process, and no change in behavior of functioning. On June 16, 2009, Dr. Ragsdill examined Ms. Talley. He noted that her mood was somewhat better, but discussed with her the possibility of adding lithium as an augmentation to her treatment. Ms. Talley rejected the idea.

Notes from Ms. Talley's therapy session with Ms. Willcutt on November 18, 2009, indicate that Ms. Talley's response to therapy was not positive.  She stated, "Brenda is very depressed and apathetic about her current living situation. She was very negative in session and reports having no energy to do or work on current situation. She reports feeling like `Brenda' is slipping away."  Ms. Willcutt noted that "Brenda is isolating and avoiding friends, family, and appointments when possible." She recommended that Ms. Talley increase the frequency of her therapy sessions and case management appointments.

Ms. Willcutt met with Ms. Talley again on December 9, 2009.  She noted that Ms. Talley's mood was depressed and overwhelmed; her thoughts were negative; and her behavior was anxious. Ms. Talley reported difficulties living with her mentally ill mother and brother. Ms. Willcutt noted that Ms. Talley's activity level was "significantly reduced."

On December 9, 2009, Ms. Talley was also seen by her psychiatrist, Dr. Ragsdill. He noted that Ms. Talley was walking with a cane, was anxious, and did not want to go out much. He assessed that she was having an "incomplete response" to her antidepressant regimen. He increased her Effexor to the maximum dose and added lithium.

In a treatment and prognosis summary dated December 13, 2009, Ms. Willcutt noted that Ms. Talley's depression and anxiety had increased over the past several months. She pointed out that Ms. Talley's thought patterns were increasingly negative and her anxiety was more apparent. She stated that she had agreed with her current diagnosis of major depressive disorder, recurrent, moderate to severe and anxiety disorder NOS and stated that, in her opinion, Ms. Talley's prognosis was guarded, due to the recurrent nature of her mental disorder and severe stressors.

Evidence from treating sources are generally accorded great weight because they are most able to provide a longitudinal picture of a claimant's impairments. 20 C.F.R. § 416.927. The ALJ had access to Ms. Talley's treatment records from Counseling Associates through June, 2009, but opted to focus on the first few months of her treatment, when she showed some signs of improvement. The Appeals Council had access to Ms. Talley's records through December, 2009, but concluded that the information did not provide a basis for changing the ALJ's decision. The Court disagrees.

The treating source records, taken as a whole, indicate that Ms. Talley's depression and anxiety had not improved on medication but, in fact, steadily declined after March of 2009. The ALJ erred by failing to address Dr. Ott's opinion and by relying on a six-month snapshot of Ms. Talley's treatment records when assessing her mental residual functional capacity.

IV. Conclusion

After consideration of the record as a whole, the Court concludes that the decision of the Commissioner is not supported by substantial evidence. The Commissioner's decision is reversed and remanded for action consistent with this opinion. 

IT IS SO ORDERED.

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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