SSA Paid About $2 Million In Benefits To Dead Federal Workers

October 11, 2016 - The Social Security Administration (SSA) paid deceased federal employees $1.7 million in benefits for an average of seven years after they died.
According to an audit by the Inspector General (IG), the error occurred due to the SSA’s failure to crosscheck beneficiaries’ death files with the Office of Personnel Management (OPM). As a result, the deaths were not logged in SSA records. The office manages the administration of retirement benefits and other services for government workers.
“The erroneous benefit payments account for a handful of cases out of the millions the SSA processes each year,” said David W. Magann, a prominent attorney in Tampa, Florida, whose firm specializes in Social Security disability law. “However, this latest incident throws a spotlight on how the administration needs to change its practices when handling records to make sure such mistakes do not happen in the future.”
Investigators found the SSA made the erroneous payments of old-age, survivors and disability insurance benefits to 35 individuals. Among them, one beneficiary had died in 1991, but the Office of Personnel Management never reported the death to Social Security.
The inspector general claimed the SSA would have likely paid the deceased individuals around $258,000 in benefits over the coming year if the discovery had not been made.
Calling the $1 Million $700 Thousand Dollars an “extremely small number,” the SSA said it “represents less than one-tenth of a percent of total benefit payments.” In the administration’s official response to the audit, it promised to do better and ensure the situation is resolved by the beginning of the next fiscal year. The SSA said, “Over the years we have made, and will continue to make, enhancements to ensure our death data is accurate and to stop payments when we receive confirmed death reports.”
In one example that was cited, a Georgia woman received benefits until 2015 even though she had died in 2007. Although her son reported her death to the SSA, he was able to receive his mother’s benefits checks totaling $68,192 over seven years.
He must now repay $63,446 in penalties to the government.

Video Hearings Are A Denial Of Due Process

 

GILBERT MARTINEZ v. COMMISSIONER SOCIAL SECURITY

United States Court of Appeals, Third Circuit.

GILBERT M. MARTINEZ, Appellant v. COMMISSIONER SOCIAL SECURITY

No. 16-1956

    Decided: October 6, 2016

Before: VANASKIE, SCIRICA and FUENTES, Circuit Judges OPINION *
Gilbert M. Martinez appeals from an order of the District Court affirming the Commissioner's decision to deny Martinez's claim for supplemental security income (SSI).
We will affirm.
Martinez applied for SSI on August 31, 2011, alleging disability starting on August 19, 2011 (AOD) resulting from arthritis, nerve damage, and acid reflux.
The agency denied the application on January 5, 2012, and Martinez requested a hearing before an Administrative Law Judge (“ALJ”). 
After a video hearing on July 23, 2013, the ALJ determined that Martinez was not disabled pursuant to § 1614(a)(3)(A) of the Social Security Act and denied the application for benefits.
(NOTE: This writer believes Video Hearings are a Denial of Due Process.
See http://cgacriticalthinkers.blogspot.com/2014/03/video-hearings-are-denial-due-process.html
In its written opinion of August 15, 2013, the ALJ found that Martinez had a severe impairment in his right hand resulting from a gunshot wound that Martinez had suffered as a child. However, considering the record as a whole, the ALJ found that Martinez did not suffer from rheumatoid arthritis or any other condition that met the criteria for listed impairments that would render him statutorily disabled. The ALJ also found further that Martinez had some use of his right hand and had compensated for the impairment to that hand through the use of his left hand.
 Consequently, the ALJ found that Martinez was not disabled and that there were occupations available to him that would require only partial use of his right hand.
Martinez appealed.
The Appeals Council of the Social Security Administration (A/C) declined further review, making the ALJ's decision the final decision of the Commissioner of Social Security.
Martinez then sought judicial review of the ALJ's decision.
After considering a Magistrate Judge's report and recommendation and Martinez's objections thereto, the District Court affirmed the ALJ's decision and entered judgment in favor of the Commissioner. This appeal followed.
We have jurisdiction pursuant to 28 U.S.C. § 1291. Our review is deferential, as it is limited to determining whether the ALJ's decision is supported by substantial evidence. Brown v. Astrue, 649 F.3d 193, 195 (3d Cir. 2011).
Substantial evidence is “ ‘more than a mere scintilla,’ and is defined as ‘such relevant evidence as a reasonable mind might accept as adequate.’ ” Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999) (quoting Ventura v. Shalala, 55 F.3d 900, 901 (3d Cir. 1995)). If substantial evidence supports the ALJ's findings of fact, those findings bind us even if we would have settled the factual inquiry differently. Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999).
An individual who is disabled, and otherwise eligible based on income and resources, is entitled to benefits under the Social Security Act. 42 U.S.C. § 1381a.
To establish disability, “a claimant must demonstrate [that] there is some ‘medically determinable basis for an impairment that prevents him from engaging in any ‘substantial gainful activity’ for a statutory twelve-month period.' ” Plummer, 186 F.3d at 427 (quoting Stunkard v. Sec'y of Health & Human Servs., 841 F.2d 57, 59 (3d Cir. 1988)).
A claimant is unable to engage in any substantial gainful activity “only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.” Id. at 427-28 (quotation marks omitted).
To determine whether a claimant is disabled, the Social Security Administration considers, in sequence, using a 5-Step Evaluation Process whether the claimant: (1) is engaged in substantial gainful activity; (2) has a severe impairment; (3) has an impairment that is the same as or equivalent to an impairment listed by the Administration as presumptively precluding any gainful activity; (4) can return to past relevant work despite the impairment; and (5) is capable of performing other work in the national economy. 20 C.F.R. § 404.1520; Brewster v. Heckler, 786 F.2d 581, 583-84 (3d Cir. 1986).
As noted above, the ALJ found that Martinez had a severe impairment, but not one that precluded any gainful activity, and that other work was available to Martinez in the national economy that he could perform despite his impairment.
Martinez now argues on appeal that the ALJ: (1) failed to credit or ignored certain probative evidence; (2) failed to give sufficient weight to the opinions of Martinez's treating physician; (3) failed to expressly consider Martinez's testimony; (4) failed to weigh the evidence and explain how contrary evidence was rejected, and (5) failed to consider Martinez's reports of subjective pain and specify reasons for rejecting that testimony.
The administrative record belies these contentions, and we find no fault in the District Court's discussion of the ALJ's decision.
We comment briefly on Martinez's two main procedural objections that the five separate points named in Martinez's brief on appeal comprise.
First, the evidence that Martinez says that the ALJ should have considered was not part of the administrative record. Martinez attached two documents to his brief before the District Court that purport to show a diagnosis of rheumatoid arthritis from two of his treating physicians. Martinez did not present those documents as part of his case before the ALJ, even though the ALJ invited Martinez to provide additional documentation following the hearing. Consequently, we may not consider that documentation in our evaluation of whether substantial evidence supported the ALJ's decision. See Matthews v. Apfel, 239 F.3d 589, 593 (3d Cir. 2001). Furthermore, that documentation post-dates the ALJ's decision, and Martinez does not explain why he did not provide it earlier. Consequently, Martinez could not have satisfied the materiality and good-cause requirements to justify a remand to the ALJ to consider that new evidence. See Szubak v. Sec'y of Health & Human Servs., 745 F.2d 831, 833 (3d Cir. 1984).
Second, although Martinez argues that the ALJ overlooked his subjective complaints, the ALJ's written opinion in fact considered Martinez's testimony and found it not credible to the extent that the medical evidence contradicted it. In over two full pages of discussion, the ALJ identified potential contradictions within Martinez's testimony and medical evidence that was inconsistent with his subjective reports. That discussion was more than adequate to satisfy the ALJ's duty to provide explicit reasons for rejecting Martinez's subjective contentions. See Burnett v. Comm'r of Soc. Sec. Admin., 220 F.3d 112, 122 (3d Cir. 2000).
Overall, the record reflects that there is substantial evidence to support the ALJ's determination that Martinez's physical impairments did not match or equal the criteria for the relevant listed impairments necessary for a finding that Martinez was statutorily disabled. Although Martinez was able to present certain pieces of evidence that potentially supported his claim of disability, the ALJ identified “more than a mere scintilla” of medical and testimonial evidence to contradict Martinez's potentially favorable evidence, and carefully explained how each piece of evidence supported the conclusion that Martinez was not statutorily disabled.
In addition, there is substantial evidence to support the ALJ's finding that Martinez had the residual functional capacity (RFC) to perform light work subject to some limitations in light of his impairments. The ALJ cited specific items of medical evidence and points from Martinez's testimony to show how Martinez was able to perform basic tasks (ADL) in his employment and in his daily life that were reasonably equivalent to light work that would be available to Martinez in the economy.
Consequently, we will affirm the decision of the District Court that substantial evidence supports the ALJ's conclusion that Martinez was not disabled during the relevant time period.
FOOTNOTES
FOOTNOTE.   This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.
PER CURIAM

Judge Failed To Credit Claimant's Pain Allegations, Reversed, Collect Your Benefits

Social Security Judge Erred on Credibility. Decision Reversed.

Oct. 3, 2016 – The U.S. Court of Appeals for the Seventh Circuit has renewed a Wisconsin woman’s claim for disability insurance benefits, concluding that an administrative law judge (ALJ) erred when making a credibility determination.
Claimant, Debora Ghiselli, applied for disability benefits under the Social Security Act. She claimed that certain health problems, including degenerative disc disease, asthma, and obesity, prevented her from working. An administrative law judge (ALJ) denied the claim.
A judge for the U.S. District Court for the Eastern District of Wisconsin upheld the ALJ’s decision. But Ghiselli appealed, arguing that the ALJ committed errors.
The ALJ had followed a five-step sequential evaluation process for evaluating the claim, under 20 C.F.R. section 404.1520(a)(4).
 https://www.amazon.com/socialNsecurity-Confessions-Social-Security-Judge/dp/1449569757
The fourth step required the ALJ to consider Ghiselli’s “residual functional capacity” (RFC) and “past relevant work”(PRW).
To do this, the ALJ considered reports from several physicians. One was the doctor who treated Ghiselli after a workplace injury to her back. The Treating Doctor had recommended that Ghiselli limit daily work to four hours as a customer service manager.
Two other Consultative Doctors, state agency medical consultants, said Ghiselli had “severe pain and limited mobility” but the medical evidence did not support such extreme restrictions. Two other physicians performed imaging examinations and found only mild impairment.
The ALJ determined that a four-hour workday restriction may have made sense after an initial injury, but there was no medical basis to support the restriction years later. The judge assigned “significant weight” to the non-treating physicians’ reports.
In determining Ghiselli’s “residual functional capacity (RFC),” the ALJ noted Ghiselli’s own testimony. Ghiselli said she could still do light housework, drive her car, go grocery shopping, care for her pets, and perform other activities of daily living (ADL).
The ALJ also found that Ghiselli gave inconsistent statements that damaged her credibility. For instance, in one report, Ghiselli claimed her doctor restricted her from working at all until she was cleared to lift more than 15 pounds. But the doctor had said she could work four hours per day, as long as she lifted no more than 25 pounds.
The ALJ ultimately concluded that Ghiselli could perform a range of light work and was not functionally disabled for purposes of disability insurance. The district court affirmed.
But in Ghiselli v. Colvin, No. 14-2380 (Sept. 16, 2016), a three-judge panel for the Seventh Circuit Court of Appeals vacated the ALJ’s decision and remanded the case to the Social Security Administration (SSA).
The panel ruled that the ALJ made an improper credibility determination based on Ghiselli’s subjective accounts of the pain she was experiencing.
“His credibility determination was based in part on his conclusion that Ghiselli could successfully perform numerous life activities,” wrote Judge Diane Wood.
“But without acknowledging the differences between the demands of such activities and those of a full-time job, the ALJ was not entitled to use Ghiselli’s successful performance of life activities as a basis to determine that her claims of a disabling condition were not credible.”
The panel said the error was not harmless “as it informed several aspects of the ALJ’s findings with respect to Ghiselli’s residual functional capacity (RFC) and consequently her ability to perform past relevant work (PRW) or to adjust to other work.”

Sons Accused of Sexual Offenses Turn Mothers Into Militants; Sexual Assault Allegations Not A Dream Killer At All New England Colleges

The United States Coast Guard Academy is one of the Top Ten Small Colleges in New England. 
The AP is reported that Cadet 1/C Michael Shermot was sentenced to a year in prison for sexual assault and dismissed from the U. S. Coast Guard Academy and the Coast Guard Service after being found guilty at a court-martial.

The Coast Guard says Michael Shermot was sentenced September 16, by a military judge in Norfolk, Virginia. He was found guilty September 15th.
Cadet Shermot was a senior at the Coast Guard Academy in New London, Connecticut, when he was charged and suspended from the school in December 2015. Authorities have yet to disclose details of the sexual assault.
The Day newspaper of New London reported the assault occurred in West Chester, Pennsylvania, in September of 2015.
Cadet Shermot was charged with sexual assault by impairment, meaning the victim was not able to consent. He is from Shillington, Pennsylvania.
There was a total news blackout concerning the case for a year until September 2nd.

http://ucgc.blogspot.com/2016/09/webster-smith-case-repeats-after-10.html

The Coast Guard Academy is a military academy, but Brown University is a private civilian school.

A federal judge has reinstated a Brown University student after finding that the Ivy League school in Providence, R.I., improperly judged him responsible for sexual misconduct.
The case was yet another example of the stresses confronted by colleges and universities, whose methods of adjudicating such cases have increasingly come under heavy fire for being too aggressive toward the accused, even as they are being pressured for not being aggressive enough.
Indeed, the Brown case underscored how that tension has spread: It included an organized campaign by students supportive of the woman who brought the charge to pressure the judge into ruling against the man she had accused.
The campaign took the form of a widely circulated post urging people to email Chief Judge William E. Smith of the U.S. District Court for the District of Rhode Island, telling him that reinstating the student would be “morally unjust to the survivor” and create a “public safety hazard” for Brown women.
The post, which was also published as an opinion piece in “The Tab,” a student publication, was written by Brown student Alex Volpicello under the headline “Why we need to stop the student convicted of sexual assault coming back to Brown” after the judge issued a temporary order barring the university from suspending him.
The student, known only in his court case as John Doe, had not been “convicted” of anything, but rather held “responsible” for sexual misconduct by a university tribunal, a finding that the judge vacated last week while blasting the email campaign, declaring that the court:

…. Is an independent body and must make a decision based solely on the evidence before it. It cannot be swayed by emotion or public opinion. After the preliminary injunction, this Court was deluged with emails resulting from an organized campaign to influence the outcome. These tactics, while perhaps appropriate and effective in influencing legislators or officials in the executive branch, have no place in the judicial process. This is basic civics, and one would think students and others affiliated with a prestigious Ivy League institution would know this. Moreover, having read a few of the emails, it is abundantly clear that the writers, while passionate, were woefully ignorant about the issues before the Court.

The issues before the court involved Brown’s handling of an allegation brought by a female student in 2015, a year after the events she described allegedly occurred. The two were acquainted with one another and had exchanged text messages. But, she alleged, early one morning in a secluded room of a campus center, he forced himself on her, kissing her, then “forcing his fingers” into her vagina and finally insisting she engage in oral sex.
According to court documents, the woman said that she at first resisted and then stopped “to avoid being raped.”
The male student denied the allegations, saying the two had previously engaged in “sexual banter” and that she “was an active participant,” getting up two or three times to turn out lights and at one point pushing him on his back and straddling him. “I reached my hand” into her “pants because she told me I could,” he said.
The facts of the case were not at issue in the federal court, however, but rather the process used by a university tribunal that found him responsible.
Specifically, at the time of the incident, in November 2014, the judge said the university’s code governing sexual misconduct contained no definition of consent. Brown formulated one after the fact, in 2015, and decided the man had violated it, suspending him and barring him from campus until the woman graduates.

A Washington Post-Kaiser poll released in June 2015 found that 1 in 5 women say they were sexually assaulted while in college. One of the poll’s findings was that students differ on what constitutes consent. We asked some other local college students to define the word. (Jayne W. Orenstein and Jorge Ribas/The Washington Post)

The retroactive punishment was sufficiently significant to have possibly made the difference between the man being found responsible or not.
The court found other flaws in the process as well, including the university’s failure to allow the man to introduce evidence that he believed was exculpatory.
Brown, which has said it will not appeal the decision, still has the option of holding a new tribunal and redoing the process by which the student was found responsible without the fatal flaws found by the court. So the man may not be off the hook.
It’s extremely rare for a judge to intervene in such a case against a private university because, unlike public schools, they are not bound by obligations under the Constitution to afford due process to the accused.
John Doe’s suit was for breach of contract, one of the few avenues open to students at private universities.
Another is to accuse the university of violating Title IX, the anti-discrimination provisions governing colleges and universities that receive federal funds.
A former athlete at Columbia University has made headway on that front, winning a decision in August from the U.S. Circuit Court of Appeals for the 2nd Circuit that he had made a plausible case that his suspension for sexual misconduct was the result of anti-male bias, engendered in a climate of anger about campus rapes at Columbia, combined with pressure from the federal government on all universities to more aggressively pursue assault allegations or face loss of federal funds.

[Former Ivy League athlete suspended for alleged sexual assault wins important — and surprising — court victory]

More than 100 cases have been brought across the country by accused students claiming to have been denied appropriate procedural protections.
Some have challenged the relatively low burden of proof being imposed in proceedings on campuses under federal pressure.
Unlike criminal proceedings, which require proof beyond a reasonable doubt, and some civil proceedings, where “clear and convincing evidence” is required, campus sexual misconduct cases require only proof by “a preponderance of evidence,” a standard used in discrimination claims that requires only that the accused “more likely than not” committed the offense.

[‘Toxic environment’ for sons accused of campus sex offenses turns mothers into militants]

Responding to the decision in a statement, Brown University said:

The court’s ruling means that John Doe remains an enrolled student at Brown. While Doe is not taking courses at Brown this semester, the judge’s decision provides him with the option to return to campus in the semesters ahead, should he choose to do so. The University will make a determination on what, if any, further action is needed should he indicate his intent to return to campus.

(By Fred Barbash, the editor of Morning Mix, a former National Editor and London Bureau Chief for the Washington Post.)

 By Fred Barbash October 3 at 5:59 AM

Follow @fbarbash

Rio Olympics 2016

                            

Ipanema is an affluent neighbourhood located in the South Zone of the city of Rio de Janeiro (Brazil), between Leblon and Arpoador. The beach at Ipanema became widely known by the song "The Girl from Ipanema" ("Garota de Ipanema").

Ipanema is adjacent to Copacabana and Leblon Beach, but it is distinct from its neighbour. Ipanema is one of the most expensive places to live in Rio with world-class restaurants, shops, and cafes.
                                    
At the forefront of its beach culture are the many surfers and sun worshipers who socialise daily at the beach. 

                                     
 Ipanema has played a role in the culture of Rio de Janeiro since its beginning, with its own universities, art galleries, theaters and cafes. 
                                     
 It holds a street parade, the Banda de Ipanema, during Carnival festivities, separate from those of Rio de Janeiro, attracting up to 50,000 people to the streets of Ipanema.
                                     

                                      
 XXX

Army General Fired

Extramarital affair, misuse of resources cost Army general his post

Tom Vanden Brook, USA TODAY 11:59 a.m. EDT July 27, 2016

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Army Maj. Gen. David Haight had been relieved from a key post in Europe after determining he had misused government resources while having an extramarital affair

(Photo: U.S. Army)

WASHINGTON — Military officials have relieved a senior officer from a key post in Europe after determining he had misused government resources while having an extramarital affair, the Army has confirmed.
Army Maj. Gen. David Haight had been in charge of operations for U.S. European Command, the Pentagon’s principal command for confronting a resurgent Russia with the 28-nation NATO alliance.
Haight was removed from his post earlier this summer without an announcement and reassigned to Army headquarters at the Pentagon. He is listed as a special assistant to the director of the Army staff. Typically, the military reassigns senior officers suspected of misconduct to such positions as investigations unfold. Military law prohibits extramarital affairs.
Haight has been issued a letter of reprimand, a move that effectively ends his career.
"Maj. Gen. Haight was reprimanded for failing to exhibit exemplary conduct by engaging in an inappropriate sexual relationship with a woman who was not his wife and for misusing government resources," said Col. Pat Seiber, an Army spokesman.
The Army may convene a board to determine the rank at which he last served satisfactorily, Seiber said. Retirement at a lower rank could cost him tens of thousands of dollars in pension pay.
"I'm very sorry — and take full responsibility — for my actions,” Haight said in a statement to USA TODAY. “I will cooperate fully with Army leadership as the process moves forward."
Haight is at least the second senior Army officer in a high-profile position to be relieved of duty for personal misconduct in the last year. In November, Defense Secretary Ash Carter announced that his senior military adviser, then-Lt. Gen. Ron Lewis, had been abruptly fired from his job following allegations of misbehavior, which involved an inappropriate relationship, senior officials said at the time.
Lewis was reassigned to the Army staff and saw his rank drop to the two-star level. The Pentagon Inspector General continues to investigate his case.
Several cases of misconduct by senior officers — a drunken binge in Moscow by an Air Force two-star general in 2013 and the ongoing bribery scandal involving Navy officers and a corrupt businessman in the Pacific are some examples — have rattled the Pentagon in recent years. Defense secretaries have commissioned studies into stemming the problem.
Haight had seen his star rise continually while in the Army, holding several key commands. He was commissioned as an infantry officer in 1986 after graduating from Brigham Young University. His deployments read like a history of American military expeditions ever since: Panama, Haiti, multiple combat tours in Afghanistan and Iraq.
He also served as executive officer to Adm. Mike Mullen, the former chairman of the Joint Chiefs of Staff. Another key post: 53rd Chief of Infantry and Commandant of the United States Army Infantry School.

USA TODAY

Defense secretary's aide fired amid allegations

Haight is married and has four adult children.
As the operations chief, Haight oversaw eight missions, including responding to emerging crises, air and missile defense for U.S. forces and its NATO allies and joint training exercises. Those capabilities have grown increasingly critical in the last few years after Russia annexed Crimea and its warplanes have buzzed provocatively close to American ships and planes in the region.
On July 21, the Pentagon announced that Army Maj. Gen. Gordon “Skip” Davis had been assigned to replace Haight. Davis has been leading training of security forces in Afghanistan.
The threat of war with Russia is less a concern for the operations post than the flow of refugees into Europe from the war-torn Middle East, said Michael O’Hanlon, a military analyst at the Brookings Institution.  Davis’ experience in Afghanistan should serve him well in that regard, O’Hanlon said.
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Social Security Judges' Decisions Have Persistent, Serious, And Ignored Deficiencies

 

7th Circuit judge reverses benefits denial,  and chastises Social Security process.

Anne R. Hill v. Carolyn W. Colvin,

Seventh Circuit Judge Richard Posner had harsh words for the Social Security Administration (SSA) Office of Disability Adjudication And Review (ODAR) regarding Vocational Expert (VE) Testimony: clean up your act.

The 7th Circuit Court of Appeals reversed the denial of Anne Hill’s application for Disability Insurance Benefits (DIB)  and Supplemental Security Income (SSI), finding the Administrative Law Judge’s (ALJ) credibility analysis was flawed.
Ms. Hill, 56, worked for more than 13 years at a steel factory where she had to carry steel sheets weighing up to 100 pounds. The manual labor took a toll on her body and she applied for disability benefits in 2011. Her physical issues included total hip replacement, knee pain, recommended total shoulder replacement, and severe physical limitations in the use of her left side.

Her daily activities included babysitting, but she was unable to lift the child, did chores and went to church, but was unable to sit or stand for long periods of time.

The VE in her case testified that she could work at jobs classified as light and unskilled, such as dealer account investigator or a counter clerk. The VE, using his own experience to opine on how Ms Hill’s issues with her left side would impact her ability to work, testified she could still perform sedentary jobs such as a registration clerk.
https://www.amazon.com/socialNsecurity-Confessions-Social-Security-Judge/dp/1449569757?ie=UTF8&ref_=asap_bc
Using the five-step analysis for assessing disability, the ALJ concluded Hill was not disabled. The ALJ noted that Hill was not taking narcotic pain relievers, but Hill had testified that was because of her past alcohol addiction.  The judge reasoned Hill exaggerated her back pain because she hadn’t been diagnosed with certain conditions, but that conclusion is not supported by any medical evidence in the record.

“We are not confident that the ALJ would have reached the same conclusion about Hill’s credibility had the ALJ not inappropriately ‘played doctor,’ ignored possible explanations for Hill’s conservative treatment, and conflated a desire to work with the ability to do so. So the ALJ’s errors are not harmless,” Judge Anne Claire Williams wrote.

Circuit Court of Appeals Judge Posner wrote a concurring opinion in which he focused on “a persistent, serious and often ignored deficiency in opinions by the Administrative Law Judges of the Social Security Administration” in denying benefits.

He noted the issues regarding VE testimony concerning the number and types of jobs that an applicant deemed not to be totally disabled could perform.  It appears the VEs simply divide census data estimates on the number of jobs in a broad category that includes the narrow category of jobs that the applicant can perform, by the total number of narrow categories in the broad category.

“The assumption is thus that every narrow category has the same number of jobs as every other narrow category within the broad category – a preposterous assumption,” Posner wrote.

“In short, the vocational expert’s testimony was worthless – and this apart from the apparent arbitrariness of his numerology,” he continued. “It is time the Social Security Disability Office cleaned up its act.”

The case is Anne R. Hill v. Carolyn W. Colvin, acting commissioner of Social Security, 15-1230.
(By Jennifer Nelson)


Circuit Court of Appeals Judge Posner in his concurring opinion made the point that he has noticed “a persistent, serious and often ignored deficiency in opinions by the Administrative Law Judges of the Social Security Administration” in denying benefits. 
He stated that as fact. He did not offer or solicit any possible explanation for that fact. I submit that there is a probable easily explained reason for that fact. It is systemic. It could be remedied but at considerable expense. The SSA could hire only lawyers from the best law schools and pay them three times what the para-legal writers are receiving today. If only lawyers were writing SSA disability affirmations and the case load were reduced to a reasonable level, there would be a noticeable improvement in the quality of the denial decisions.
The hard truth is that SSA ALJs do not write their own decisions. They hold hearings and decide whether to pay or not to pay the claim. The decision is written by a staff writer who may not be a lawyer. The writers are often simply para-legal low level Government wage grade employees. Many para-legals have only completed a six month course at a junior college and received a para-legal certificate. Then through nepotism, favoritism, or affirmative action and luck they may find themselves at a Federal Agency writing Federal Court Decisions.
These writers do not have law degrees, but they are familiar with the SSA Regulations that pertain to disability evaluation. They simply choose which of the standard paragraphs in the SSA computer responds to each of the claimant’s allegations of symptoms and puts them into the decision. All of the parts of the decision are already written and are stored in the SSA computer.

The Social Security Administration Must Follow Its Own Regulations

 

7th Circuit orders disability case back to administrative law judge

    Angela M. Farrell v. Michael J. Astrue, Commissioner of Social Security, 11-3589

Because the Social Security Administration (SSA) Appeals Council (AC) did not consider new evidence when it was presented – despite its own regulations requiring it to do so – the 7th Circuit Court of Appeals sent a disability insurance benefits case back to the Administrative Law Judge (ALJ) for further proceedings.

At the time of the hearing on Angela Farrell’s application for disability benefits, she was married with two children and extremely overweight. She suffered from multiple issues, including anxiety, insomnia, fibromyalgia, and plantar fasciitis. Her initial application was denied, but the Appeals Council remanded her case for reconsideration. On remand, the ALJ again ruled against her, in part because of Farrell’s failure to establish definitively that she suffered from fibromyalgia.

This time, the AC affirmed the ALJ’s decision, despite new evidence before the AC that confirmed Farrell’s fibromyalgia. The District Court also affirmed.

In addition to finding the Appeals Council didn’t follow its own regulations that require it to consider “new and material evidence,” the 7th Circuit found several other aspects of the ALJ’s decision independently require correction, including that the ALJ “failed to grapple properly with the competing medical opinions” in considering Farrell’s application.

Her Treating Physician (TP), Dr. Sarah Beyer, recorded Farrell suffered from several conditions and alluded to the possibility of Farrell suffering from fibromyalgia.
The other Consultative Examining (CE) Physicians who reviewed Farrell’s file as part of the application evaluation process believe that Farrell only had “moderate difficulties” or “mild restrictions on Average Daily Activity Level (ADL).” One doctor testified there was no evidence of a confirmed diagnosis of fibromyalgia or anything that would give rise to arthritic pain.

The 7th Circuit concluded in Angela M. Farrell v. Michael J. Astrue, Commissioner of Social Security, 11-3589,  that the ALJ’s residual functional capacity determination for Farrell improperly discounted the Treating Physician, Dr. Beyer’s medical opinions and that the RFC determination was based on an incomplete assessment of the record.

The judges sent the case back to the ALJ for further proceedings. REMANDED back to SSA ALJ.

This is the Case of  Angela M. Farrell v. Michael J. Astrue, Commissioner of Social Security, 11-3589.