Tuesday, June 28, 2016

Social Security Judges' Decisions Have Persistent, Serious, And Ignored Deficiencies


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

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.
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

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.

SSA Claimant Is Disabled and Cannot Work If There Are No Jobs


The Commissioner  the Social Security Administration (SSA) has established a five step sequential evaluation process for determining whether a person is disabled.

1.       First, it is determined whether the person is engaging in substantial gainful employment (SGA). Is he/she working? If so disability benefits are denied.

2.       Second, if the person is not so engaged, it is determined whether the person has a medically severe impairment or combination of impairments. If the person does not have a medically determinable impairment or combination of impairments, benefits are denied.

3.       Third, if the person has a severe impairment, it is determined whether the impairment meets or equals one of a number of "listed impairments". If the impairment meets or equals a "Listed Impairment", the person is conclusively presumed to be disabled.

4.       Fourth, if the impairment does not meet or equal a "Listed Impairment", it is determined whether the impairment prevents the person from performing Past Relevant Work (PRW). If the person can perform PRW, benefits are denied.

5.       Fifth, if the person cannot perform PRW, the burden of proof shifts to the Commissioner of Social Security to show/prove that the person is able to perform any other kind of work.

The person is entitled to disability benefits only if he is unable to perform other work. (20 CFR Sec. 404.1520; Bowens v. Yuckert, 482 US 137, 140-142 (1987).

Step 4 explores a person's ability to perform work you have done in the past 15 years, despite their physical or mental impairments. 

 It does not matter at Step 4 if the claimant's former employer would not hire them, or if the place where the person worked is no longer in business, or if all those jobs are now done in China.

 If the Social Security Administration finds that the claimant can still perform his past relevant work, benefits are denied. The process proceeds to the 5th and final step.

Step 5 determines what other work, if any, a person can perform.

The claimant has the burden of proof and the burden of going forward with the evidence at Steps 1 through 4. 
At Step 5 the Burden of Proof shifts to the Commissioner of Social Security to prove that there is other work that the claimant can do despite mental and physical limitations.

The Social Security Administration considers the claimant's age, education, work experience and physical/mental condition to make this determination.
The  ALJ can use Medical-Vocational guidelines or “grids,” found at 20 C.F.R. Part 404, Subpart P, Appendix 2, at the fifth step of the disability determination after the claimant has been found not to meet the requirements of a listed impairment, but found nevertheless incapable of performing past relevant work.

The ALJ will determine what the claimant's Residual Functional Capacity (RFC) is. That means, considering all of his/her limitations what is the claimant still capable of doing in the workplace? What is the heaviest weight he/she can lift? How long can he/she stand without a break? How long can he/she sit without a break? What level of manual dexterity is he/she capable of?

A Vocational Expert witness (VE) may be called to testify to determine his/her vocational profile and whether their skills are transferrable based on the Medical-Vocational Grid (20 C.F.R. Part 404, Subpart P, Appendix 2). The VE will classify the claimant's past relevant work according to the Dictionary of Occupational Titles (DOT). The VE will also give an opinion concerning whether there are there a significant number of jobs available in the local or national economy that he/she could apply for? A claimant cannot work if there are no jobs or a significant number of jobs available.

Vocational expert means a vocational professional who has the qualifications required by the Commissioner of SSA. The VE provides expertise to the ALJ at the hearing.

Consider this recent case where the 7th Circuit Court of Appeals rejected denial of disabled woman’s benefits.

Finding repeated fault with the Social Security Administration (SSA) Administrative Law Judge (ALJ) who denied a Chandler woman Social Security disability payments, the 7th Circuit Court of Appeals reversed and remanded the case back to the SSA.

Heather Browning claimed she was intellectually and physically disabled. She has an IQ of 68 and suffers from a disease that limits the movement of her left leg.

The 7th Circuit faulted the ALJ for concluding Browning’s IQ score was invalid and that she actually had higher mental faculties because she was assessed as being sarcastic.

“The administrative law judge thought the fact that the plaintiff goes to ‘bars and clubs,’ does some cooking and shopping, helps care for a pet, watches television, and ‘only takes over-the-counter pain medications,’ showed that she can do at least sedentary work,” Judge Richard Posner wrote in Heather Browning v. Carolyn W. Colvin, 13-3836.

“He suggested (probably on the basis of her not using prescription painkillers) that she had outgrown the effects of the Legg-Calve-Perthes disease that she had had as a child and that her current problems with her left leg were the result of her obesity. (But so what? The issue is the disabling effect of those problems.)”

The appellate court asserted the administrative law judge committed an error by instructing the Vocation Expert (VE) to assume Browning could perform sedentary work.

 Pointing to O’Connor-Spinner v. Astrue, 627 F.3d 614, 620 (7th Cir. 2010), Judge Posner wrote the VE could not determine Browning’s ability to work because the judge would not let her consider several of the claimant’s limitations.

Also, the 7th Circuit questioned how many jobs would be available in Chandler for Browning and noted the judge’s conclusion that Browning could work as a “hand packer” is not a job that exists in the U.S. Department of Labor’s Dictionary of Occupational Titles.

This was the Case of Heather Browning v. Carolyn W. Colvin, 13-3836.
(By Marilyn Odendahl)

Monday, June 20, 2016

Culture of Corruption at Social Security Administration, Starts At The Top

The "so-called" scandal in the Madison, Wisconsin Social Security Office of Disability Adjudication and Review, SSA/ODAR, is disturbing. I believe that Judge John H. Pleuss' is getting a raw deal.
I have some thoughts on the matter. At the end of this Blog post I have posted the article written by M. D. Kittle. Please read the article after I offer my comments. I have considerable experience in these matters.
This is an invasion of Judge John H. Pleuss' privacy. I express no opinion concerning the Judge's remarks in his personal notes. Some may find them inappropriate, and some may not. However, the Judge has an "expectation of privacy" in his personal notes and observations.
The Social Security Administration encourages the Judges to keep a "Private File" of notes to refer to when deciding a disability case. The notes help the Judge to refresh his recollection of the claimant and of the Hearing when he goes back to make a decision on the case. The File is separate from the Claimant's Disability File. They should not be discoverable under the Freedom Of Information Act (FOIA).
The Disability Hearings are private, unless the claimant consents to strangers sitting in on the Hearing. The Judges' personal notes from the Hearing should also be private.

 The disability evaluation process is a "high volume' business. A Judge must hear 50 to 75 cases a month in order to produce an average of 50 to 60 decisions a month. There are no pictures of the claimant in the case files. All judges scribble notes and memory joggers in order to try to remember the claimant later when they review the file. Credibility weighs heavy in the decision making process. A Judge must conjure up a recollection of the claimant to properly dispose of the case. One Judge's characterization of the person who appeared before them may be different from another. His job is not to flatter the claimant, but to remember who he or she was. There is nothing in Judge Pleuss' notes that is grounds for adverse action against him.

If you notice all of the cited comments refer to women; and women, only. Normally that would cause one to think that the ALJ is obsessed with women or female claimants. But, I have a better explanation, and it has nothing to do with the ALJ.
I contend that this incident raises serious questions about the fitness of the Decision Writers in Judge Pleuss' Hearing Office. Judges do not write their own decisions. There are professional Decision writers in each Hearing Office. Lawyers and Para-legal writers draft a proposed decision based on the ALJ's Hearing Notes. The ALJ modifies, amends, and approves a final draft.
First, if a Decision Writer has passed on to the Civilian Managers in the Hearing Office Judge Pleuss' personal notes, that would be unethical and disloyal. We need look no further than the Decision Writers and Management to see what is happening here.
There has always been tension and friction between between the ALJ Corps and civilian managers, all the way up to the Commissioner in Baltimore, Maryland.
On several occasions the AALJ, the Judges' Union, has lobbied Congress to remove the ALJ Corps from under the authority, supervision, and management of the SSA civilian managers.
( https://www.amazon.com/socialNsecurity-Confessions-Social-Security-Judge/dp/1449569757?ie=UTF8&ref_=asap_bc)
Yes, there is a Culture of Corruption here; but, it starts in Baltimore, Maryland at the Office of the Commissioner and the Office of the Chief Administrative Law Judge; and it reaches down to the lowest level. And it is most malignant at the Hearing Office Director (HOD) and Decision Writers level.
Many of the Decision Writers suffer from mild mental disorders. They tend towards Melancholia. They are frustrated, and they bicker and complain. Some tend to be trouble makers.
Many, I have noticed, appear to be envious of the Judges. They resent that the ALJ hears the cases, but they, the writers, have to do the leg work of writing the decision. They work in the dark, behind closed doors, and get little or no credit. This tends to generate friction and resentment.
The worst of the lot are the male homosexual writers. And there are many. There were two in my office for almost 20 years. We had only six writers and the two males were homosexuals.
They are prone to hysterics. They are easily agitated, often for no discernible reason. I was discussing a draft decision with one once and, out of the blue, he became agitated and screamed at me. I was shocked. I did not know what I should do. Do I discipline him, or what? I did nothing, because there are so many of them and they are well placed. Also, the Hearing Office Chief Judges tends to protect them. So, I just let it go.
All of which brings me back to my original point. This is just the type of hanky-panky that male homosexual writers would start. This is how they operate. I know from experience. I spent about 20 years in a Hearing Office and I saw just about every kind of dirty office shenanigans that one could imagine.
The tip-off is that they only mentioned remarks about women. Anyone who has ever had to work with male homosexuals in a legal office or other closed community would notice that. It is a dead give-away.
All of this will probably turn out to be nothing more than a tempest in a tea pot.

     Here is the article.

Social Security judge suspended in wake of Madison scandal.

Wisconsin Watchdog has learned that Administrative Law Judge John Pleuss’ hearings in recent days have been canceled amid a looming Social Security Administration Office of the Inspector General investigation into the Madison Office of Disability and Adjudication Review, or ODAR.
Asked whether Pleuss had been suspended, an office employee who answered the phone Thursday June 16would say only that Pleuss was out of the office. So, too, was Office Director Laura Hodorowicz. Asked whether Hodorowicz had been suspended, the employee said, “I can’t answer that,” but that the director is “out today, too.”
Neither Pleuss nor Hodorowicz returned calls from Wisconsin Watchdog seeking comment.

 Sources close to the situation say Administrative Law Judge John Pleuss appears to have been suspended as an investigation looms into allegations of misconduct at the Madison Office of Disability Adjudication and Review. Doug Nguyen, spokesman for the Social Security Administration’s Chicago Region, did not return an email seeking comment. ‘Culture of corruption and cover-up’
Wisconsin Watchdog first reported last week about new charges of “pervasive” sexual harassment, bribery and nepotism coming to light at the Madison ODAR facility. These accusations came on top of previous allegations of misconduct, harassment, and whistleblower retaliation at both the Madison and Milwaukee disability claims review offices.
“There is a culture of corruption and cover-up, and that goes all the way to the top,” said an ODAR employee with knowledge of the situation. The staff member spoke on condition of anonymity for fear of reprisal.
Wisconsin Watchdog obtained internal documents showing what employees have described as “highly inappropriate” comments Pleuss has made about claimants appearing before him.
“Young, white (female); attractive brunette,” Pleuss wrote under “Initial Observations” in official hand-written hearing notes. The claimants’ names and other personal information have been redacted.
“Young, white (female); long brown hair; attractive; looks innocent,” the ALJ wrote.
He described another claimant as “buxom,” and noted that a “young, white (woman) looks like a man.”
“Obese, young, white (female) skimpy black top,” he wrote of another claimant.
“Very black, African looking (female),” the ALJ wrote, and parenthetically he added,“(actually a gorilla-like appearance).”
In one document, Pleuss wrote, “I’ll pay this lady when hell freezes over!
RELATED: ‘Culture of corruption and cover-up’ alleged in Madison Social Security office
Pleuss is one of six administrative law judges at the Madison office. He has been the subject of an internal investigation into sexual harassment allegations, according to multiple sources.
The employee who spoke to Wisconsin Watchdog on condition of anonymity said Pleuss has acquired a reputation as “being sexually inappropriate.”
“It truly has become a national running joke,” the staff member said.
But there is nothing funny about the charge by those familiar with the administrative law judge and the “toxic environment” of the Madison office that Pleuss has approved or rejected disability claims based on “how sexy he thought the claimant was,” the employee said.
The insider claims “sexual harassment of staff is pervasive and ongoing” in the Madison office. Other sources have told Wisconsin Watchdog as much.
A disability claims attorney told Wisconsin Watchdog this week that there has been concern for some time about Pleuss’ conduct. The attorney said cases that seemed strong were denied, while weaker cases were approved.
“This issue may explain a lot about that inconsistency,” the attorney said. “Given your reports, I will now be able to raise issues involving females. It should be interesting since I will be asking for copies of his notes on every denial.  I’m sure that request will be denied and I may end up asking federal district court to issue orders for the release of the documents.”
The ODAR employee who spoke to Wisconsin Watchdog said the SSA offices in Milwaukee and Madison are “extremely hostile work environments for whistleblowers.” They also are closely connected by the same administrative players in the Chicago ODAR Region.
Reward and punishment
ODAR whistleblowers have told Wisconsin Watchdog that they have repeatedly been subject to retaliation and intimidation for reporting waste, abusive behavior and other misconduct in their government offices.
Less than a month after Ron Klym was featured in a Watchdog.org special investigation, the senior case technician at the Milwaukee Office of Disability Adjudication and Review was told the agency that has employed him for 16 years is proposing to fire him.
Klym detailed the Milwaukee office’s growing backlog of cases. Wisconsin Watchdog obtained records of some of the more lengthy delays.
More problematic is what Klym calls the administrative “shell game.” He said the Milwaukee office’s case disposition numbers have at times drastically improved because managers in the chain have dumped off scores of cases to other regional offices.
(NOTE: This is not new. This was happening before 1990. Shell Games. Paying Down The Backlog. See https://www.amazon.com/socialNsecurity-Confessions-Social-Security-Judge/dp/1449569757?ie=UTF8&ref_=asap_bc )
Multiple sources have told Wisconsin Watchdog that, Hodorowicz, director of the Madison office, protects Pleuss and others in her inner circle.
The employee who spoke on condition of anonymity said Hodorowicz is fond of making “dirty backroom deals,” offering  “cooperative” employees perks in the form of financial benefits and special privileges to maintain their loyalty and above all –silence — about misconduct in the office.
Eventually, the office director runs out of sweeteners, the employee said.
“When that happens , the threats begin. … She will threaten people’s jobs, tell them she won’t promote them, lower their performance reviews, say that she will give them a bad reference,” the insider said. “She will give them the worst work assignments in the office.”
Wisconsin Watchdog has obtained emails sent by Hodorowicz that appear to be threatening in nature.
Multiple employees say the office director has been the subject of several investigations into her conduct, in Madison and when she held the same position in Milwaukee. Each time, they say, her cadre of loyalists testify on her behalf. And, sources say, they are rewarded for their loyalty.
And a Madison office staff member said Hodorowicz has taken nepotism to a new level.

Wisconsin Watchdog reported Monday that Office of Inspector General agents are opening an investigation into the Madison office, particularly focusing on Pleuss,  Hodorowicz, and Wayne Gentz, a group supervisor considered to be a Hodorowicz ally.
Also this week, U.S. Sen. Ron Johnson, R-Wis., sent a formal letter to the Social Security Administration requesting the agency’s “unfettered cooperation” in turning over information related to allegations of misconduct and retaliation in SSA’s disability claims review offices.
“I write to you concerning reports of whistleblower retaliation within the Milwaukee and Madison hearing offices of the Social Security Administration’s Office of Disability Adjudication and Review,” Johnson wrote in the letter to Carolyn Colvin, SSA’s acting commissioner.
Johnson, chairman of the Senate Homeland Security and Governmental Affairs Committee, has been trying to get answers from the SSA since a staff-level briefing on May 9.