Widespread fraud reported in Social Security Administration's Disability Program
The fraud is so rampant, and disability cases have so proliferated in recent years, that the Social Security's Disability Trust Fund may run out of money in only 18 months, says Sen. Tom Coburn, R-Okla., whose office undertook the investigation.
Coburn’s report on widespread fraud, released Monday, focuses in large part on a veritable "disability claim factory" allegedly run by Attorney Eric C. Conn out of his small office in Stanville, Kentucky, a region of the country where 10 to 15 percent of the population receives disability payments.
The report documents how Attorney Conn allegedly worked together with Social Security Administrative Law Judge David Daugherty (ALJ) and a team of favored doctors with checkered pasts, including suspended licenses in other states, who rubber stamped approval of disability claims. In most cases, the claims had been prepared in advance with nearly identical language by staffers in Conn's law office.
The report found that over the past six years, Attorney Conn allegedly paid five doctors almost $2 million to provide favorable disability opinions for his claimants.
In 2010, the last year for which records are available, Judge Daugherty approved 1375 disability cases prepared by Attorney Conn's office and denied only 4 of them - an approval rate that other administrative law judges have described as nearly impossible.
The average disability-benefit approval rate among all administrative judges is about 60% of cases. But there are Daugherty equivalents dotted across the country. In the first half of fiscal 2011, 27 judges awarded benefits 95% of the time, not counting those who heard just a handful of cases. More than 100 awarded benefits to 90% or more of applicants, according to agency statistics.
Judge Daugherty, 75 years old, processed more cases than all but three judges in the U.S. He had a wry view of his less-generous peers. “Some of these judges act like it’s their own damn money we’re giving away,” Mr. Daugherty told a fellow Huntington judge, Algernon Tinsley, who worked in the same office until last year, Mr. Tinsley recalled.
Judge Daugherty was a standout in a judicial system that has lost its way, say numerous current and former judges. Judges say their jobs can be arduous, protecting the sometimes divergent interests of the applicant and the taxpayer.
Some former judges and staff said one reason Judge Daugherty was allowed to continue processing so many cases was because he single-handedly helped the office hit its monthly goals. Staff members can win bonuses and promotions if these goals are surpassed as part of performance reviews.
Critics blame the Social Security Administration, which oversees the disability program, charging that it is more interested in clearing a giant backlog than ensuring deserving candidates get benefits. Under pressure to meet monthly goals, some judges decide cases without a hearing. Some rely on medical testimony provided by the claimant’s attorney.
The report found, "Judge Daugherty telephoned the Conn law firm each month and identified a list of Mr. Conn’s disability claimants to whom the judge planned to award benefits. Judge Daugherty also indicated, for each listed claimant, whether he needed a “physical” or “mental” opinion from a medical professional indicating the claimant was disabled."
Coburn's report found that, "over a four-year period from 2006 to 2010, the Social Security Administration paid Mr. Conn over $4.5 million in attorney fees." And that, "Mr. Conn was the third highest paid disability law firm in the country due to its receipt of over $3.9 million in attorney fees from the Social Security Administration."
The report says that when Senate staffers and the Social Security Administration’s Office of the Inspector General began an investigation based on tips from whistle blowers, Attorney Conn and Judge Daugherty began communicating with disposable, pre-paid cell phones. It also alleges they contracted with a local shredding company to destroy 13 tons of documents. Attorney Conn also allegedly destroyed all the computer hard drives in his office.
In 2011, the SSA placed Daugherty on administrative leave. He retired shortly after that.
Attorney Conn's legal fate is now in the hands of the Justice Department.
The alleged fraud highlights an endemic problem in Social Security disability benefit awards. The Coburn report says a random examination of 300 case files by Congressional staff found more than a quarter of the case files “failed to properly address insufficient, contradictory, or incomplete evidence,” suggesting a high rate of fraud or abuse.
Disability payments have skyrocketed across the U.S. in recent years. At the end of August 2013, more than 14 million Americans were receiving disability benefits The Social Security Administration has blamed aging baby boomers and the lingering effects of the recession as two causes, but another reason disability payments have skyrocketed appears to be the SSA's attempt to reduce the back-log of disability cases has forced judges to hold hearings without reviewing the medical evidence in the case file, decide cases without holding hearings, and approve cases of claimants that are not disabled.
That, in turn , has led to less scrutiny of individual case files, which can be hundreds of pages long.
Social Security Administration officials acknowledge they are trying to clear a backlog of 730,000 cases. But they say they remain focused on ensuring taxpayer money isn’t wasted. “We have an obligation to the people in need to provide them their benefits if they qualify, but we also have an obligation to the taxpayer not to give benefits to people who don’t qualify,” said the former SSA Commissioner Michael Astrue.
LEXINGTON, Ky. (WKYT) An eastern Kentucky attorney at the center of a national disability fraud investigation is breaking his silence. Floyd County attorney Eric Conn says "the truth will be forthcoming" and for others not to be so quick to judge.
A congressional report accuses Conn of scheming with retired administrative law Judge David B. Daugherty to approve more than 1,800 disability cases from 2006 to 2010.
"I have practiced Social Security disability law for twenty years. I have advertised extensively and represented every claimant to the best of my ability," wrote Conn in a statement sent to WKYT. "When changes in the law occurred, I studied those changes in an effort to better represent the people who put their faith in me. I have served my clients with honor and dignity."
Before a senate hearing on Monday, October 7, 2013 Conn refused to answer questions, a former worker claimed he called doctors responsible for signing off on the reports "whore doctors" because they didn't question the information.
Allegations in a more than 160-page report from a U.S. Senate committee include that Conn "used his law practice to exploit key vulnerabilities in a critical federal safety net program and became wealthy in the process, "inappropriate collusion," and the "collaborated on a scheme that enabled the judge to approve, in assembly-line fashion, hundreds of clients for disability benefits using manufactured medical evidence."
Attorney Conn - said to be the third highest paid disability lawyer in the country - stood before a senate hearing Monday, October 7, where four witnesses testified against him. He's accused of perpetrating massive fraud against the Social Security Administration (SSA).
Daugherty is said to have awarded an unusually high number of benefits totaling $ 2.5-billion while Conn would seek out doctors with suspicious credentials.
"He called them whore doctors because you could get them to do what you want and they were cheaper," said Melina Hicks who worked for Conn.
The report claims these doctors would sign a claimant's form -- paving the way for Judge David Daugherty to award benefits.
One in three of the cases reviewed revealed identical paperwork.
During this time, Conn received $4.5 million in lawyers fees paid by SSA.
Jennifer Griffith and her co-worker Sarah Carver also testified Monday. They processed disability claims in Huntington, West Virginia.
In 2011, they filed a federal lawsuit against Conn and Daugherty under the false claims act which allows whistle blowers to get a portion of money recovered in fraud cases.
"With Judge Dougherty and Eric Conn, what I seen was 100 percent// if you look at that statistic alone, what's the likelihood that every claimant who walks into your office is disabled," said Carver who is a senior case technician for the SSA.
In a "60 Minutes" broadcast on Sunday, October 6, CBS News tracked down Conn.
When reporter Steve Kroft asked Conn to talk about his relationship with the former judge and his incredible success in disability court, Conn didn't elaborate.
"Boy, that's tempting. Oh, I would love to comment on some of that. But not - I'm really sorry, I don't think I should right now," Conn told CBS News.
At Monday's hearing, he remained even more restrained.
"I respectfully assert my constitutional right not to testify here today, sir," Attorney Conn told committee members.
Judge Daugherty left the hearing before he was called to testify.
More than 11-million Americans receive disability insurance. That's up 20 percent in the last six years.
Sen. Tom Coburn who spear-headed the investigation says that this case is just one example of widespread abuse.
"Some in congress refuse to acknowledge that the disability programs are broken and in dire need of significant oversight. People who are truly disabled will pay the price of our dithering," said Sen. Coburn.
Being disabled is often not the chief worry of DI applicants.
There is something particularly despicable about anybody who would game the Social Security disability system, imperiling the program for people who are genuinely in need of such assistance. But countless people are doing just that. Heather Mac Donald—the Manhattan Institute’s Cassandra—began sounding the alarm in 1995 with a groundbreaking City Journal article about an able-bodied and hardworking family, which, alas, put its impressive energies into obtaining DI payments instead of finding more meaningful work. Since then, things have only gotten worse.
When it began, the disability insurance (DI) program was small and inexpensive. Applicants were vetted and the able-bodied turned away. The number of people on DI in 1960 was around 455,000; by 2011, the number had skyrocketed to 8,600,000. The budget for DI is $135 billion a year, topping the costs of the departments of Homeland Security, Justice, and Labor combined.
Even this figure is misleading: after two years on DI, the recipient is eligible for Medicare, regardless of age, adding immensely to the taxpayer’s burden. DI benefits are not lavish, amounting to around $1,100 a month. This often adds up, however, to lifetime benefits of around $300,000. Disability lawyers, on the other hand, can pull down princely sums. Dare I say they make out like bandits?
Senator Coburn's report, jointly released Oct. 7 by the Senate’s Homeland Security and Governmental Affairs Committees, and featured last Sunday on "60 Minutes," shows how legal and medical personnel are exploiting the system and in the process creating a national disaster. Government reports can make for pretty dull reading. But this one is a page turner. Not since the Starr Report, which dealt with shenanigans in the Clinton White House, have I found myself unable to put down a government document. And this report is far more important than the Starr Report, dealing, as it does, with a costly and widespread form of moral rot.
The star of the report is Eric Conn, who, according to the report, has built the largest and most lucrative disability practice in the country. Conn, whose office is in Stanville, Kentucky, on the West Virginia border, was also the subject of a Wall Street Journal expose. For a disability lawyer, winning is everything. They only get paid of their client wins. Then they are paid by the government, which deducts the fees from what the client receives.
The system has worked well for Conn. “At the height of his success in 2010, Mr. Conn employed nearly 40 people and obtained more than $3.9 million in legal fees from [the Social Security Administration], making him the agency’s third highest paid disability lawyer that year,” the Coburn report notes.
It hasn’t hurt that most of Conn’s cases were heard by Administrative Law Judge David Daugherty, in the SSA’s regional Huntington, West Virginia Office of Disability Adjudication and Review. In 2010, Judge Daugherty, who is currently on administrative leave, ruled against only four of the 1,284 cases he heard. This record is all the more astonishing when one realizes that these were cases that had previously been turned down and were on appeal. Daugherty reportedly okayed around $25 billion in DI benefits in his last years as an administrative law judge.
No wonder the judge and lawyer reportedly took pains to work together. According to the Coburn report, "Judge Daugherty telephoned the Conn law firm each month and identified a list of Mr. Conn’s disability claimants to whom the judge planned to award benefits. Judge Daugherty also indicated, for each listed claimant, whether he needed a ‘physical’ or ‘mental’ opinion from a medical professional indicating the claimant was disabled."
Conn also seems to have had favorite doctors, some of whom have suspect credentials, including a history of malpractice payouts, but nevertheless were paid substantial fees to fill out DI forms. According to the report, a review of records found that over the past six years Conn paid five doctors almost $2 million for paper work on disability clients. (He contracted these fees with claimants.)
And the medical work wasn’t that demanding. The Conn firm reportedly supplied doctors with a set of five different pre-filled out forms for hundreds of clients. Some doctors met clients at the “medical suite” in Conn’s law offices. Fifteen minutes was a normal visit. This meant that a single doctor could see up to 35 claimants in a day. An indication about how widespread this abuse is: a businessman in my hometown ruefully told me that there is a local doctor widely known as the go-to man for DI benefits, even (or especially) if you are in the pink of health.
Although Coburn made it abundantly clear on “60 Minutes” that he doesn’t begrudge DI payments to the genuinely disabled, the senator, who is also a physician, was lambasted for being anti-sick person. “The news program's theme was that disability recipients are ripping off the taxpayer,” charged Michael Hiltzik of the Los Angeles Times, a Pulitzer Prize winner, no less, in a story describing the “shameful attack on the disabled.” Did Mr. Hiltzik really see “60 Minutes?” Coburn was critical of the non-disabled who, with help from lawyers, doctors, and judges, are ripping off the system.
Coburn acknowledged that many able-bodied DI claimants are desperate because the economy is so bad that they can’t find work. Nevertheless, DI wasn’t set up to deal with the outcomes of a bad economy but to help keep people who truly can’t work. Can DI be saved for those who really need it? There are some fixes: a healthy skepticism about the cases claimants present and the presence of a representative of the Social Security Administration—or better still, a taxpayer’s advocate—at DI hearings would be a start.
The reason fraud escapes detection, the report indicates, is that judges face tremendous pressure to get through the backlog of DI applicants. Before you suggest hiring more judges, let me propose a simpler fix: if only the truly disabled got DI, if the fakes were turned away, the lines of people applying would be shorter. Our friend with the cowboy hat is involved in DI law because it’s a gold mine. It shouldn’t be. It was designed for the disabled, not for lawyers and shady doctors.
Of course, if there is a move to institute such changes, there will be an outcry. The Michael Hiltziks will accuse reformers of hating the disabled, and the public will be swayed. Or will it be? We may be reaching a point where the taxpayer is sick and tired of being ripped off—and the majority of Americans are appalled when our government offers citizens inducements to give up on work and cheat through an ill-supervised program that ends up helping lawyers and doctors, rather than the disabled.
Rick Lowry of the National review does not think very highly of Attorney Conn.
The Committee report encapsulates a two-year investigation, led by Senator Tom Coburn (R-OK), of a West Virginia Social Security office charged with the disbursement of Social Security Disability funds. The investigation uncovered an advanced network of inside dealings between a Kentucky-based law firm, local doctors, and an Administrative Law Judge resulting in a complex rip-off of the federal government's disability program. The suitably named Eric Conn of the Conn law firm in Kentucky paid doctors substantial fees for unsubstantiated medical evaluations of his clients, maintained a highly questionable relationship with the judge who consistently approved Conn's clients for benefits, and in doing so generated more than $4.5 million in attorney fees paid by the Social Security Administration for services rendered to disability applicants.
The travesty, however, is not the millions paid to the attorney, but the billions that will be paid out over the lifetimes of those whose claims were improperly approved under this scheme to defraud the U.S. taxpayers.
Senator Coburn has established himself in the Senate as a crusader for cutting down on wasteful government spending and fraud in entitlement programs; but in the Senate, he is frequently faced with opposition from legislators who, he says, "buy into the idea that getting more people on Social Security is more important than doing oversight." This line of thinking is problematic in its feasibility, not to mention the damage it will ultimately cause to those who qualify for and need the assistance the most. The Social Security Disability Insurance Trust Fund is running out of money. It is projected that by 2016, 20% of benefits will be cut, yet disability benefits are being approved in record high numbers. An estimated 15 percent, or $21 billion of SSA benefits, are rewarded to ineligible recipients. Earlier this year, Social Security acknowledged they haven't processed over 1.3 million "follow-ups" to make sure people who are receiving disability benefits are still entitled to receive them.
Congress cannot continue to turn a blind eye to issues of fraud in entitlements and must give this report and its glaring implications the attention that it deserves. Reforms to reduce fraud and redirect funding to individuals who legitimately qualify for these benefits must be implemented. Furthermore, the Social Security Administration must take the information in this report and review the list of claimants with a connection to Mr. Conn to ensure that they actually qualify for the benefits that this judge approved. Thus far, there has been no indication by SSA that such a review will occur.
Lastly, the U.S. Department of Justice has had access to much of the information contained in the report for over a year and has taken no action. No criminal charges have been filed and the U.S. Attorney's Office gave notice in 2012 that they would not intervene in the civil action filed by two whistleblowers who are former employees of the West Virginia Social Security Office. DOJ's inaction is inexcusable in light of the enormous amount of readily available evidence in this case. While DOJ sits on the sidelines, the whistleblowers and their attorneys continue in their quest to see that Conn and his cronies pay for the damage they have caused and will cause to those who actually need and are entitled to disability benefits.
(By Katherine G. Robertson)
Affidavit in Social Security Scheme Contains References to “Voodoo” Dolls, Smuggling Women, and a “We the People” Wedding Band
Jamie Slone testified before the U.S. Senate Homeland Security and Government Affairs Committee, but her affidavit in a civil action by whistleblowers Jennifer Griffith and Sarah Carver reveals alleged computer destruction, a voodoo doll sent on the “getrevengeonyourex.com” web site billed to “cuddles for you,” $20,000 to “sneak” his fiancée from St. Kitts to Florida, tainted campaign contributions, personal calls and emails from the accused judge, and consideration of leaving the United States for Cuba.
The alleged disability scheme included the creation of a monthly so-called “DB” list, a medical suite aat the Eric C. Conn Law Firm, Dr. Frederic Huffnagle evaluating individuals for five or ten minutes, and the physician’s wife dictating a medical opinion. “If a client did not attend their appointment, Mr. Conn wrote a report based on the claimant’s medical records,” the affidavit stated. “The firm used ten versions of residual functional capacity (RFC) documents to submit to Judge Daugherty and other ALJs in support of clients’ cases of physical disability.”
Some clients were given x-ray requests that had “we do not want the films read by anyone” marked on the form. “Mr. Conn found descriptions on the internet of x-ray films. He cut and pasted these descriptions into his clients’ medical opinions,” the affidavit stated.
The affidavit provides details of efforts by employees of the law firm to film Ms. Carner (who allegedly leaked the story to the Wall Street Journal) not working during her flex day. When that failed, they filmed her “walking into the Huntington ODAR office” on a working day, but a newspaper and radio tape from a flex-day was substituted. Slone said the video was supposed to be sent to the Office of the Inspector General of the Social Security Administration, but the faux video was “sent to the wrong address.”
Slone’s affidavit indicates that firm funds went to purchase ten $1,000 money orders for the Will T. Scott campaign in which different firm employees sent the funds to the campaign. In addition, the band of Pike County judge was paid $4,000 to play at a wedding, but “Mr. Conn also paid Big Appal Studios to produce and distribute a CD of music played entitled “We the People.”
Finally the former office manager swears that during a six year period (2006-2012) , Mr. Conn sent funds to Thailand to support “fiancées or women that he was dating that lived in that country.” Emails stated that money for “Oriental Fashion” covered English lessons, an apartment, spa treatments and cosmetic surgery.
One attempt to marry a woman on a “yacht,” near Florida cost $20,000. Since Conn was out of town, another attorney put down the cash. According to the affidavit, “the plan was abandoned before it was completed,” but Conn did reimburse the other lawyer for the 20 grand.
- conn affid.pdf (738.35 KB)
- Testimony-Slone-2013-10-07.pdf (16.41 KB)
$22.7M injunction sought in caseOct. 26, 2013 @ 11:54 PM
Their motion for a preliminary injunction was filed this month in Pikeville, Ky., while Conn pushed for complete dismissal of the nearly two-year-old lawsuit. The lawsuit alleges Conn and Administrative Law Judge David B. Daugherty of Huntington engaged in a scheme to improperly award Social Security disability benefits to hundreds of applicants.
U.S. District Judge Amul R. Thapar heard arguments for and against the dismissal Oct. 9 in Covington, Ky. He then took the matter under advisement with no decision entered as of midday Friday.
The lawsuit specifically claims Daugherty assigned himself cases, conducted sham proceedings and awarded Conn's clients benefits without justification, while Conn utilized medical experts who provided false or fraudulent testimony and used Daugherty for claims denied elsewhere.
In their request for an injunction, whistleblowers Sarah Carver and Jennifer L. Griffith lean upon a congressional investigation that concluded Conn has received $22.7 million in attorney fees and cost reimbursements from the Social Security Trust Fund since 2001. It describes Conn as a flight risk with a history of sending money overseas. The request says the two fear that without an injunction, those earnings will dissipate and leave the government "with an inability to restore even a small percentage" of fees and disability claims already paid from the Trust Fund.
Carver, a senior case technician, and Griffith, a former master docket clerk, both worked at the agency's 9th Street Plaza location in Huntington when the alleged abuses occurred. They stand to receive a percentage of any funds recovered should they succeed on the government's behalf.
The Justice Department has twice declined opportunities to intervene in the civil litigation, and federal prosecutors for eastern Kentucky and southern West Virginia are mum on any criminal investigation.
U.S. Attorney Booth Goodwin, assigned to the Southern District of West Virginia, said Monday he could neither confirm nor deny the existence of any criminal investigation into the alleged abuses.
Meanwhile, the U.S. Senate Committee on Homeland Security and Governmental Affairs continues its inquiry, weeks after hearing testimony from the whistleblowers and releasing its own investigative report. Among its findings was an estimate stating Daugherty's unusually high productivity and approval rate awarded more than $2.5 billion in lifetime benefits to Conn's clients and others during the judge's final years on the bench.
U.S. Sen. Claire McCaskill, D-Mo., attended the hearing and told the women she doubts it would be their last time testifying.
"This report gets my heart beating a little faster as a former prosecutor," she said at the Oct. 7 hearing. "If you put some good prosecutors on these set of facts, and I think you're going to find something more than the pressure to move a docket quickly."
Carver and Griffith's congressional testimony preceded appearances by Conn, three doctors and Charles Paul Andrus, who was chief administrative law judge at the Huntington office during the period the alleged scheme occurred.
Daugherty failed to appear at the hearing despite a subpoena, and Conn invoked his Fifth Amendment right against self-incrimination.
The whistleblowers have since filed a motion for Thapar to take notice of Conn's refusal to testify, while also noting Daugherty's absence, in deciding whether to dismiss their lawsuit.
Conn, in a motion filed by his attorneys Tuesday, objected to any negative inference being drawn between his decision not to testify in Washington and his standing in the civil case. It states Conn has not invoked any Fifth Amendment protections in the civil case and "adamantly disputes the Senate Report and its conclusions."
Conn's attorneys believe permitting such an inference, especially before Thapar decides upon their motion to dismiss, would lead to an "absurd situation" during which he would testify about the Senate report and negative inferences of invoking the Fifth Amendment, even though no such assertion has been made in the civil case.
"That cannot be the case," the motion states.
Conn's attorneys, based in Louisville, Ky., argue the whistleblowers' lawsuit does not link their client to any specific filing of a false claim for disability benefits. Instead, they claim the allegations are based on speculation and conjecture, saying it is no secret Conn represented numerous clients whose cases were processed by the Huntington office.
"Knowledge of this fact is not equivalent to knowledge that the claims for disability were false or fraudulent in nature," according to an Oct. 7 filing. "Conn asks that the Court put an end to what can only be described as a fishing expedition."
The whistleblowers' attorneys, based in Lexington, Ky., contend their lawsuit meets the required specificity to survive Conn's motion to dismiss. That includes specific examples of when Daugherty assigned himself cases and information how specific claims can be located.
"The complaint passes muster if its factual claims are plausible," according to a Sept. 23 response to Conn's motion to dismiss. "Once a complaint satisfies this test, however, it must be permitted to proceed 'even if it strikes a savvy judge that actual proof of those facts is improbable, and 'that a recovery is very remote and unlikely.'"
The whistleblowers cited an affidavit from Jamie Lynn Slone, a former Conn employee, in their argument for the $22.7-million injunction. Slone's affidavit said her former boss, in reaction to a May 2011 article in the Wall Street Journal, considered leaving the United States for Cuba to avoid any criminal extradition.
The affidavit also states Conn defied the advice of his own attorney as he ordered certain documents be destroyed, saying "this is my office and I will do what I want."
"There is no way I am going to jail," Slone's affidavit quotes Conn as saying. "If I was paying D.B. (Judge Daugherty) I wouldn't be dumb enough to leave a paper trail."
The whistleblowers also used the affidavit to link Conn to other foreign associates. It states he would try to smuggle certain women into the United States, including an abandoned effort in November 2011 to pay a Toronto man $20,000 to rent a boat in St. Kitts and use it to sneak Conn's fiancée into Florida.
The affidavit also links Conn to a man in Thailand, to whom the eastern Kentucky attorney would send varying amounts of money as support for his fiancées or women he was dating. Slone's affidavit noted she reviewed emails from the Thailand man stating the payments, billed as "Oriental Fashion," would cover apartments, vehicles, English classes, cosmetic surgery, spa treatments and a person paid to look after the women.
"The potential harm to Plaintiffs, and thus the United States, is likewise irreparable," the motion for an injunction states. "The requested preliminary injunction is the only way to protect them, and the United States from ongoing damage while this matter proceeds to trial."
Aside from Conn's position that the lawsuit fails to state any specific filing of a false claim, his attorneys also argue for an outright dismissal on grounds the whistleblowers were not the original sources of a voluntary disclosure, the statue of limitations have expired and that Thapar's court lacks jurisdiction due to Daugherty's standing as a senior executive branch official.
Conn's attorneys cite a work manual in stating Carver and Griffith already had an obligation to report fraud. Attorneys for the women counter, arguing their clients were not hired as fraud investigators, so their gathering of information was voluntary and their reports to the government investigators and assistance in a Wall Street Journal report make them the original source.
Attorneys for the whistleblowers further contend their lawsuit falls within the statute of limitations. They also point to Daugherty's failure to tout his former standing as senior executive branch official as evidence no jurisdictional concerns exists.
Daugherty, answered the whistleblowers' lawsuit on his own behalf, denying many of the allegations and saying he lacked knowledge or information sufficient to form a belief about others. His answer closed with a demand for a jury trial, according to the Sept. 9 filing in U.S. District Court.
Nov. 02, 2013HUNTINGTON -- An investigation into the Huntington Office of Disability and Adjudication Review was launched after the publication of a Wall Street Journal article in 2011 outlining the relationship between disability lawyer Eric C. Conn and Administrative Law Judge(ALJ) David Daugherty.Conn ordered a massive destruction of files at his office, according to a report from the Committee on Homeland Security and Governmental Affairs and testimony at a Congressional hearing last month.
ALJ Daugherty, then 75 years old, called Conn's firm multiple times in the days after the article appeared, but Conn refused to talk to the judge on his law firm's phone lines, the Congressional report found.
The report states the judge left a message on Conn's home phone that said:
"OK. There are those of us who know the D.A. There are those of us who know the circuit judge. There are those of us who have an inside track and hear some things. We need to talk. If you don't want to, it's your loss. You need to contact me ... You need to do it. There are things you need to know. Good-bye."
After that, the report alleges, ALJ Daugherty and Conn communicated through the use of disposable prepaid cell phones so the calls couldn't be tracked.
ALJ Daugherty was placed on administrative leave pending investigation and retired in 2011. Judge Charlie Andrus also stepped down as chief justice of the Huntington office, though he continued to serve as a judge until being placed on leave pending an investigation and retiring this year.
ALJ Debra Bice, chief administrative law judge (Chief ALJ) for the entire Office of Disability and Adjudication Review under the Social Security Administration (SSA/ODAR), told a colleague that when she questioned Andrus on ALJ Daugherty, "he couldn't give an honest assessment of what was going on."
While Andrus testified before a Senate committee investigating Social Security fraud earlier this month, Conn exercised his 5th Amendment right not to testify on evidence that might incriminate himself.
Despite receiving a federal subpoena, ALJ Daugherty did not show up for the hearing.
Huntington office workers Sarah Carver and Jennifer Griffith gave detailed testimony on the dysfunction of their workplace, and two of Eric Conn's former employees also testified.
"Those women, the ones who spoke out, they are extremely brave and deserve a lot of credit," said ALJ Daniel Kemper, a former judge and colleague of ALJ Daugherty in the Huntington office.
Shortly after the Congressional hearings, Barboursville Police, responding to a call of what the department called a possible suicide attempt, found ALJ Daugherty passed out in a car with a garden hose duct-taped to the exhaust pipe and running into the vehicle. An empty bottle of liquor and an empty pill bottle were also found, according to police.
ALJ Daugherty was revived and spent an unknown number of days at an area hospital before being released.
Just how Huntington Administrative Law Judge David "D.B." Daugherty managed to be one of the most productive Social Security Administration judges in the country in the later years of his career was something of a mystery to his co-workers and fellow judges. ALJ Daugherty, who became an administrative law judge in 1990, was hardly ever in his office and rarely conducted hearings, according to a report issued by the U.S. Senate Committee on Homeland Security and Governmental Affairs last month after it looked into possible abuses in the Huntington Social Security office.
The report and recent Congressional testimony allege ALJ Daugherty abused an initiative by the Social Security Administration urging judges to decide between 500 to 700 cases per year to clear some of the system's backlog.
Daugherty well exceeded those marks, moving thousands of disability claims per year, almost all of which he approved by simply looking at a file and making a decision while rarely conducting hearings. When those hearings were conducted, it was at a break-neck pace.
When a fellow judge expressed concern over moving cases quickly, Judge Daugherty told him "You're just going to have to learn what corners to cut," according to the report.
The document indicates Judge Daugherty engaged in this behavior for years even before the 2007 initiative, and perhaps made himself indispensable because he exceeded numeric goals and helped put the Huntington Office of Disability and Adjudication Review among the most productive offices in the country.
But the volume of cases didn't match what colleagues observed of the judge's work ethic.
The report states one administrative law judge in an email called Daugherty "intellectually lazy," and that was "probably his most obvious trait."
Another colleague said Daugherty was "A spoiled little boy who became a judge" who "sought the easiest way out" in his work.
The 266-page congressional investigative report, Congressional testimony and media reports allege Daugherty worked with Kentucky disability attorney Eric C. Conn to abuse the Social Security Administration by awarding unearned disability benefits to so many clients that Conn became the third-highest-earning disability attorney in the United States at one point.
The report also reveals that Judge Daugherty approved benefits in thousands of other cases that had no connection to Conn.
Decisions made by Daugherty from 2005 through 2011 to award disability benefits to claimants cost Social Security more than $2.5 billion, according to the report. His 99.7 approval rating over a two-year monitored period was well above the national average of 60 percent.
In 2010, Judge Daugherty was the third-most productive ALJ judge out of 1,500 judges nationwide, deciding 1,411 cases. Of those, 530, or roughly 37 percent, were claimants represented by Conn. Daugherty awarded benefits in 1,410 of the cases. He denied benefits only once.
The report states it was a running joke in the Huntington Office of Disability and Adjudication Review that if someone was looking for Judge Daugherty, "you should not look in his office."
Various fellow judges and even some office personnel brought it to the attention of management numerous times that Judge Daugherty would sign in, disappear for the day, then return and sign out as if he had worked eight hours. Sometimes he even gave himself extra hours worked. The judges do not receive extra pay for overtime, but can earn extra leave.
The report states that Daugherty's behavior when it came to time and attendance was "a constant source of tension" in the Huntington office.
One of Daugherty's critics in that regard was fellow judge ALJ Daniel Kemper.
"It was extremely frustrating," the now-retired Kemper said in an interview with The Herald-Dispatch recently. "It's one of the reasons that I left."
Kemper and Daugherty were sworn in together in 1990, and assigned to the Huntington office. Kemper said he spent three weeks in training with Daugherty, who had previously been a circuit judge in Cabell County from 1977 through 1984.
Kemper and other justices issued complaints to Huntington Office Chief Justice (HOCALJ) Charlie Andrus multiple times over a period of years regarding the attendance and sign-in issues, but Daugherty was never disciplined.
The report states that Andrus tried on several occasions to kick the complaints up to his superiors, who told the justice it was his responsibility to manage such an issue, with one official saying, "I think Judge Andrus wants someone else to do his job."
Kemper contended in the congressional report that Daugherty was never disciplined because he moved a high volume of cases.
Former fellow judge William Gitlow wrote to a colleague: "We have Judge Daugherty here who scans the master docket each month, pays 90+% of the time and gets out 80 to 100 cases a month. So we make our numbers each month. Without him we would not. Ever."
Documents also show that in the case of another Huntington judge who only decided about 20 cases per month, HOCALJ Andrus moved quickly to conduct a thorough investigation of alleged time card abuse.
After a Wall Street Journal article about Daugherty's relationship with Conn was published in May 2011, Kemper, who retired in 2007, said he was floored by statements Daugherty made to local media.
Daugherty said in those interviews that he moved a lot of cases because he loved his job and applied himself to the task of relieving a backlog of cases.
"He was claiming he got all these cases because he was such a hard worker," Kemper said. "... His contention that he worked so hard could be refuted just by his time and attendance records."
Kemper said he had no idea where Daugherty went every day.
" ... there was nothing I had seen," Kemper said. "I didn't go so far as to make an individual effort to follow him around."
Enter Eric Conn
The committee report indicates that Daugherty didn't work hard, but fast.
He decided most of his cases "on the record," meaning he didn't conduct a hearing with the claimant, but awarded benefits just by looking at the case file.
In relation to Conn, since at least 2006, Daugherty would call the attorney's office and read off a list of names and Social Security numbers of Conn's clients who were on the judge's docket, referred to as the "DB list," and tell Conn or his office employees what type of medical evidence he needed to approve the case, investigators found.
Conn would then take disability forms that were already filled out to doctors to sign. Conn allegedly paid local physicians he referred to as "whore doctors" anywhere from $300 to $650 per form, according to Congressional testimony and the committee report.
Daugherty would then write favorable decisions for the client, using variations on the same language in nearly every case, the report states. It also said Daugherty would have Conn change the onset date of a condition so that records of previous denials wouldn't factor in because the judge would be supposedly looking at a new medical diagnosis.
Many of those cases were moved onto Daugherty's docket by the judge himself, according to the report and testimony. Andrus was bombarded by complaints from other judges and docket clerks that Daugherty was taking cases that hadn't been assigned yet, or, in some cases, had already been assigned to other judges.
Andrus would promise to discuss the issue with Daugherty, but the judge was never disciplined, according to the report.
Daugherty was questioned about his relationship with Conn as early as 2002, but deflected any criticism back on Andrus, alleging the chief judge had an inappropriate social relationship with the attorney.
Andrus admitted he had met once with Conn for a meal, and had gone to a movie with the attorney. He also said Conn offered him all-expenses-paid trips to Brazil and Russia, which Andrus said he flatly turned down due to conflict-of-interest issues.
At times, Daugherty made some rather striking allegations about his superior.
In replying to questions from a higher judge about his social relationship with Conn, Andrus said "This is exactly what I was talking about when dealing with Judge Daugherty. At least this time he did not accuse me of doing cocaine in my office."
When judge Daugherty did conduct hearings, they were done in assembly-line fashion, according to his fellow judges.
Daugherty would review Conn's cases in the Huntington office's Prestonsburg, Ky., satellite office, which was close to Conn's legal practice.
"I would be with (Daugherty) in Prestonsburg, and you would see Eric Conn bring in these scores of people at one time," Kemper said. "(Daugherty) would finish 20 cases in the time it took me to do two or three."
According to the report, Daugherty would conduct hearings in 15-minute increments, while a single hearing for another judge would take 45 minutes to an hour.
But in most of the cases involving Conn's clients, Daugherty opted for making "on the record" decisions based on case files and negating the need for hearings.
According to the congressional report, Daugherty conducted 80 hearings for 481 of Conn's clients he approved for benefits in 2006. Those hearings were conducted over a span of four days.
In 2007, Daugherty saw only four of 509 clients he handled for Conn, with all of the hearings conducted in one day. He didn't conduct hearings for any of Conn's 429 clients he approved for benefits in 2008. In 2009 and 2010, he saw a total of five of Conn's 981 clients who were granted benefits. In 2011, before his suspension, Daugherty saw 18 of 366 clients he approved for Conn, all in one day.
In one instance in 2002, Daugherty canceled a Prestonsburg docket of 30 cases and granted all the claimants benefits using the on-the-record method of case review. However, several court employees needed for the hearings had already been scheduled and paid to be at the Prestonsburg office.
That prompted Andrus to send out a memo to the entire Huntington office asking all cancelations be cleared through him. Regional Chief Justice at the time, Judge Frank Cristaudo, who operated out of the Philadelphia office, wrote a memo requesting that Daugherty be officially reprimanded.
"To state that 30 hearings were canceled and 30 on-the-record decisions issued to help the agency meet performance goals suggests possible impropriety and flawed decisions," Cristaudo wrote.
Cristaudo had drafted a reprimand and agency leaders met in December 2002 to decide if Daugherty should be disciplined. According to the report, the letter was never sent due to agency concerns regarding judicial independence.
That phrase -- "judicial independence" -- was one that Andrus would use time and again while being grilled by a U.S. Senate panel last month on why Daugherty was never disciplined.
According to the report, Andrus did note that Conn would frequently cancel hearings if the case wasn't on Daugherty's docket.
He said he confronted Conn directly about this, and Conn remarked "Well, it was good while it lasted."
According to the report, Daugherty continued to move Conn's cases to his docket until the Wall Street Journal article was published. That's when Andrus put a strict lockdown on moving cases and even put a stop to a custom schedule the chief judge had designed that made sure Conn's cases were heard before any others.
Daugherty did not attend a Congressional hearing on SSA fraud despite a subpoena from the federal government.
Daugherty said he explained his absence in an email through his attorney to the committee, but did not reveal its contents to The Herald-Dispatch.
(Fields, Ben; West-Va Hearld-Dispatch)
A top lawmaker January 16 demanded a top-to-bottom review of the Social Security Administration’s management structure, following a series of disability scandals that have rocked the agency and led to widespread government scrutiny.
Rep. Sam Johnson (R., Texas), who chairs the House subcommittee that oversees Social Security, directed the Social Security Administration’s inspector general to launch the review.
The demand comes one week after the Manhattan District Attorney’s office brought a case alleging more than 100 people – including former firemen and police officers – were cheating the Social Security Disability Insurance program by improperly collecting benefits when they shouldn’t have.
In August, the U.S. Attorney in Puerto Rico brought another large case alleging widescale disability fraud — one of the largest sweeps since the program was created in the 1950s and the first major case since the program’s rapid expansion during the financial crisis.
And the Justice Department is also looking into whether there was an improper relationship between a former Social Security judge (Daugherty) in West Virginia and a disability lawyer in Kentucky.
The Social Security Administration primarily authorizes two kinds of benefits, one for older Americans and another for people who are no longer able to work because of health problems.
The disability program pays close to $140 billion in benefits to roughly 11 million people, making it one of the government’s largest – but least known – entitlement programs.
A number of Democrats have joined Republicans in demanding more answers from top Social Security Administration officials, as the recent scandals come at a time when the SSDI program is quickly exhausting its reserves. Its trust fund is projected to run out of money in 2016.
Mr. Johnson called for the review during a hearing at which SSA acting commissioner Carolyn Colvin and SSA inspector general Patrick O’Carroll testified. Though Mr. O’Carroll’s division is responsible for overseeing and even investigating the agency’s operations, the IG has stopped short of criticizing any of the agency’s actions with regard to the cases in New York, Puerto Rico, and West Virginia. In fact, in recent months, senior SSA officials have told Congress that disability fraud is very rare, and the IG’s office hasn’t refuted that view.
A top-to-bottom review, as demanded by Mr. Johnson, could create a more adversarial relationship between the IG and top SSA brass than has existed in recent years.
As the disability program has grown, it has faced a number of strains. Millions of Americans applied for benefits during the economic downturn, straining the agency’s resources and forcing many judges to ramp up their workload for processing appeals. This has created a growing tension between a number of judges and senior SSA management, leading to at least one lawsuit. Meanwhile, the agency has taken steps to tighten its control over the administrative law judges.
Ms. Colvin is running the agency until the White House nominates a commissioner, and the White House has not signaled when it might move on the vacancy.