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.

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.
 https://www.amazon.com/socialNsecurity-Confessions-Social-Security-Judge/dp/1449569757?ie=UTF8&ref_=asap_bc

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?

VOCATIONAL EXPERTS (VE)

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.

                      Heather Browning v. Carolyn W. Colvin, 13-3836.

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)

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.

MADISON, Wis. – The administrative law judge accused of sexual harassment and of making “highly inappropriate” comments about claimants appears to have been suspended, according to a source close to the situation.

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.
 By M.D. Kittle

Whistleblower Retaliation By Social Security Administration

Social Security whistleblower questioned by investigators after going public

http://www.amazon.com/socialNsecurity-Confessions-Social-Security-Judge/dp/1449569757/ref=asap_bc?ie=UTF8

     

   

https://www.amazon.com/SocialNsecurity-London-Steverson-ebook/dp/B006VOQIKK?ie=UTF8&ref_=asap_bc
MADISON, Wis. – One week after going public with allegations of misconduct and intimidation by managers at the Madison Office of Disability Adjudication and Review, Celia Machelle Keller had a visit from federal investigators peppering her with questions and making accusations of their own.
“I got home today (Wednesday) … and the dogs are going crazy,” Keller said. “Two guys are at my door. They gave their cards and told me they were with the (Social Security Administration) Inspector General’s office and they want to speak with me.”
Keller said it’s just more retaliation from a Social Security disability claims review agency that has come under fire for an array of conduct issues – including going after whistleblowers.

Watchdog.org file photo

INVESTIGATED: Social Security Administration whistleblower Celia Keller says she was interrogated at her home this week by SSA Inspector General agents, days after she went public with her allegations of harassment and intimidation at the Madison office.

The lead case technician has worked for the Madison office for several years, and she claims management retaliated against her after she was called to testify in an inner-office misconduct case last year. The incident involved alleged “inappropriate behavior” by an Administrative Law Judge (ALJ), she said.
RELATED: Whistleblower: ‘I want to do my work without fear of retaliation’
Now, Keller claims the Inspector General’s office is dogging her because she took her complaints to Wisconsin Watchdog and to the U.S. Senate Homeland Security and Governmental Affairs Committee. Keller, who did not want her name publicly disclosed in the first story last week for fear of reprisal, says she’s tired of living in fear.
“I’m scared to death to go into work tomorrow. What are they going to have waiting for me? Are they going to perp walk me out like they did the guy from Milwaukee?” she said.
Keller is referring to Ron Klym, a senior case technician in the troubled Milwaukee Office of Disability Adjudication and Review. Klym was the first Milwaukee ODAR whistleblower to go public with his allegations of lengthy case delays, inter-agency “shell games” of case transfers, and retaliation against employees who pointed out misconduct. Klym was temporarily placed on administrative leave shortly after he went public with the charges.
Klym also was subjected to an Inspector General investigation not long after taking his allegations of administrative misconduct to federal authorities.
Keller said the Inspector General agents told her they were investigating her for scheduling her son’s girlfriend, Danielle Bray, as a hearing monitor for disability claims appeals. The investigators took issue with what they characterized as a suspiciously higher amount of work Keller was providing Bray.
“They said, ‘Danielle Bray is scheduled for 12 days. Do you see how that looks suspicious?’” Keller said. The insinuation, Keller said, was that she was taking kickbacks for assigning Bray more work. Keller’s son and his girlfriend live with Keller and her husband in their McFarland home.
“They were out here for 30 minutes, drilling me, asking me, ‘Don’t you see how bad this looks?’” she said.
“They were questioning my integrity. I would never put my family in jeopardy for a few extra dollars.”
There’s apparently no policy against assigning family members work. Keller said several relatives of administrative law judges and supervisors at the Madison office work as hearing monitors and in other positions.
An official with the SSA Office of the Inspector General, citing the Privacy Act, said she could not confirm the existence of, or comment on any specific allegations involving any possible investigation.
“However, I can tell you that the Office of the Inspector General does have a role in the whistleblower process and we take whistleblower allegations very seriously,” said Tracy B. Lynge, communications director for the Inspector General’s office.
Keller said she provided the agents with scheduling documents and emails showing there was nothing untoward about the process. She sent Wisconsin Watchdog the same records. Everything looks in order, with Bray’s schedule approved by supervisors.
In one email chain in February, the director of the Madison office, Laura Hodorowicz, wrote a curt message threatening that she will “absolutely stop using” Bray after Keller complained that Bray was not getting as many hours as other monitors.
Keller previously told Wisconsin Watchdog that she and other staff members have been bullied and intimidated by Hodorowicz.  Keller said she and some of her colleagues learned after they complained in another harassment case that raising conduct questions was basically futile. Hodorowicz, she said, made life difficult for whistleblowers.
“We had a bullseye on our back,” Keller said.
Doug Nguyen, regional communications director at the Social Security Administration’s Chicago office, did not return a call seeking comment. He has declined comment in the past, saying the whistleblower allegations are “personnel matters.”
At the same time, Keller has received exemplary ratings in her performance reviews, even as investigators were called to look into the scheduling issues.
“Machelle exceeded expectations, both in terms of the volume of work she produced and the quality of what she did. She routinely pulled more than her fair share of cases,” her supervisor wrote in Keller’s appraisal in October 2015. She received a similar review in April 2016.
“How does a person get all 5s (the highest performance grade) on her employee evaluation and get accused of scheduling” irregularities? she said.
“Retaliation,” Keller answered her own question.
“I’ve never experienced anything like this in my 28 years of being a paralegal,” she said.
( By M.D. Kittle  /   May 26, 2016 )

Social Security whistleblower now faces firing

     

   

MILWAUKEE – Ron Klym spoke out publicly, alleging incompetence, misconduct and retaliation in the federal government office where he has worked for 16 years.
Doing so might just cost him his job.
On Thursday, less than a month after Klym’s accounts were featured in a Watchdog.org special investigation, the senior case technician at the Milwaukee Office of Disability Adjudication and Review was forced to sign his own employment death warrant.
Klym said he was called into the office of Chief Administrative Law Judge Christopher Messina.
“He had a stack of papers in front of him. I said, ‘Well, it looks like a disciplinary action. Can I speak to my union rep? He said, ‘This is not a disciplinary action. This is a proposal to terminate. I need you to sign off on this,” Klym said.

Watchdog.org file photo

COST OF WHISTLEBLOWING? Ron Klym faces being fired, he says, for blowing the whistle on alleged bad activity at the Milwaukee Office of Disability Adjudication and Review.

The veteran employee of the Social Security Administration office that handles disability claim appeals was placed on administrative leave. He was told that Regional Chief Administrative Law Judge Sherry Thompson would make the final decision on the proposal within the coming weeks.
Klym, who claims he has endured several incidents of supervisor-driven retaliation since taking his complaints to federal authorities, said he wasn’t surprised by Thursday’s events.
“Frankly, this is the epitome of how they do business,” he said.
Earlier this month, Klym detailed the Milwaukee office’s growing backlog of cases. Wisconsin Watchdog obtained records of some of the more lengthy delays.
Dozens of cases on appeal took more than 700 days to complete. One Green Bay case clocked in at 862 days to dispose of. A Marquette request for benefits hit 1,064 days, and another was completed in 1,126 days.
“We had two clients who stopped in the office yesterday wondering what’s going on, and they have been waiting for 21 months,” Jessica Bray, partner at Upper Michigan Law in Escanaba, Mich., said in the May 4 investigative piece. Her colleague handled the noted cases that topped 1,000 days. “I sent a letter to the Milwaukee office, but I don’t think it’s going to do any good. Those cases haven’t even been assigned yet.”
In 2011, the inventory for the Milwaukee region’s disability claims appeals office was at approximately 2,200 cases; today it’s running at about 12,000, Klym said.
RELATED: Social Security whistleblower questioned by investigators after going public
Doug Nguyen, communications director for the Social Security Administration Chicago region, a six-state region that includes Milwaukee, said the agency acknowledges that Milwaukee ODAR has a “high average processing time for disability appeal hearings, and we are working to address the issue.”
Nguyen has said he cannot comment on personnel matters.
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.
“They are wholesale shipping cases out,” the senior legal assistant said. The impression is that the offices are performing at a better rate than they actually are. “When you ship 1,000 cases to somewhere else, then you do an audit, it looks better.”
At least three other ODAR employees have confirmed Klym’s account.
Now Messina is moving to have the whistleblower removed.
Klym said he is being charged with performance failures and conduct unbecoming a federal employee – all trumped up charges, he said.
The senior case technician said he is being held to a higher standard than his peers, required to meet increased production metrics. Those new standards, coincidentally, went into effect not long after he took his complaints to the Senate Homeland Security and Governmental Affairs Committee last July, Klym said.
But he has documentation showing that his supervisor had rescinded the higher thresholds, noting that Klym’s previous workload – at as much as twice the output of his colleagues – was satisfactory.
He also has performance appraisals noting his exemplary performance in preparing cases.
Klym also faces being fired because he raised his voice and used “obscene” language during a discussion earlier this month with the ODAR office director, Trevor Pelot.
Klym said the discussion did get a little heated when Pelot told him that he had violated the public trust by taking his complaints about the office public.
“There is a definite retaliatory thing going on here,” he said. “I’m concerned that Mary and Ms. Keller may be next.”
Klym referred to Mary Brister, another employee at the Milwaukee office, and Celia Machelle Keller, a lead case technician at the Madison Office of Disability Adjudication and Review.
Brister, who went public with her complaints about the Milwaukee office, was suspended last week and she lost her tele-work privileges for a year. She claims management retaliated against her for telling her story to Wisconsin Watchdog.
Keller had Social Security Administration Office of Inspector General agents show up at her door this week, days after the whistleblower publicly claimed managers harassed and intimidated her after she testified in an office harassment case.
Klym, too, was interrogated by Inspector General agents at his home, some 18 hours after he contacted the office of U.S. Sen. Ron Johnson, R-Oshkosh, about the issues in the Milwaukee office.
He will remain in his position while he awaits the final judgment. But Klym is not allowed in the building.
“I’m in a difficult position,” he said. “I can’t enter the office, so how can I access documentation or speak with anybody to prove I am innocent?”
He said he plans to reach out to representatives on the Senate committee and the federal office charged with protecting whistleblowers.
( By M.D. Kittle  /   May 27, 2016 )

The Case of Cadet Webster Smith, The Last Word

http://www.amazon.com/Case-Cadet-Webster-Smith-Last/dp/1533400806/ref=asap_bc?ie=UTF8
Synopsis:

We, as Americans, cherish fairness. We like to believe that people are not punished or unjustly rewarded without justifiable cause. We like to dwell on parables of white virtue and black advancement culminating in the flowering of goodwill all around. Events sometimes force us to widen our gaze and focus on terrain we would rather not see. The 2006 court-martial of Cadet Webster Smith at the United States Coast Guard Academy did just that. The Webster Smith case was a litmus test for justice in America. Every once in a while a case comes along that puts our humanity as a people, and as Americans, on trial. Everything that we profess to stand for as Americans was on trial. Our sense of justice in America and particularly in the U.S. Military was on trial. This was no ordinary trial. Our humanity was on trial. Our system of justice was on trial. This case dissolved the deceptive façade and exposed certain moral deficiencies in our system of justice. This case alone puts the legitimacy of the entire military justice system at risk.

Webster Smith availed himself of every path to justice that we have. He filed an Article 138 Complaint under the UCMJ. He faced the Article 32 Investigation with two lawyers. He asserted all of his Constitutional Criminal Guarantees. He knew and made appropriate use of the Right to Counsel, the Right to Remain Silent, the right to a jury trial, the Right to Confront the witnesses against him, the right call witnesses on his behalf, the right to present evidence favorable to him, the presumption of innocence until his guilt was proven beyond a reasonable doubt, and the right to argue his case before the Jury.

His Appellate Counsel, Ronald Machen, was top notch. He became the United States Attorney for the District of Columbia. In April 2015, he left the position and returned to the law firm WilmerHale.  Wilmer Cutler Pickering Hale and Dorr®  has played a leading role in historic events and landmark cases that have shaped the nation and left their mark across the globe. In matters ranging from the Army-McCarthy hearings to the legal defense of civil rights, from the 9/11 Commission to the restoration of the rule of law in apartheid-torn South Africa, their lawyers have made contributions that have profoundly affected our society. Because the law is still a profession as well as a business, lawyers have special obligations to the administration of justice and the development of the law. Their lawyers are  encouraged to meet these obligations through pro bono work. Attorney Machen represented Webster Smith on a pro bono basis. He received no fee.

Webster Smith appealed his conviction all the way to the United States Supreme Court. He lost at the Coast Guard Court of Criminal Appeals. He lost at the Court Of Appeals for the Armed Forces of the United States. The U. S. Supreme Court dismissed his appeal without comment. And, on top of the aforesaid, he filed a Complaint of Discrimination, pursuant to Commandant Instruction 5350.11. He had an air tight and fool proof case of disparate treatment. Yet, he lost. He lost because the System was manned by the most incompetent people God ever created. They did not have a clue as to what was going on in their office. The most significant case in the history of the Department of Homeland Security and the Armed Forces of America came to them and they were not capable of processing it properly.  

On top of everything else, Webster Smith had bad luck. At some juncture along the way, most other people would have won, but not Webster Smith. One has to wonder why. There are some who will say that it was because he was Black. They will say that the System was designed and administered by white men and women; and, no Black man can obtain justice in that System. They might have a point, even though some of the decisions made concerning his case were made by Black people in key offices.

We now see that there is little or no justice in military justice. Any reasonable person who looks at this case or any other high profile military justice case would have to conclude that the Military Justice System is not designed to render justice. It is a system designed to punish. The entire courts-martial system, from Summary Court-martial to General Court-martial, has one specific purpose; that is to punish anyone who commits an offense against the Uniform Code of Military Justice.

This is intended to be the definitive word on the first and only court-martial of a United States Coast Guard Academy cadet. The Case of Cadet Webster Smith, The Last Word is written from the perspective of the accused, Cadet First Class Webster Smith. It is not written from the perspective of his accusers. A prior account of this case focused on the women involved. Conduct Unbecoming an Officer and a Lady told the story of the court-martial from the perspective of the witnesses for the prosecution.

Why now? Well, there are several reasons. This Case is unique in that this has never happened before. No other Coast Guard Academy Cadet has ever been punished at a General Courts-martial. That is saying a lot for an institution that has been around since 1876.

Also, it has been ten years since the trial and conviction. An entire decade has passed. The sentence has been served. The Supreme Court Petition for A Writ of Certiorari has been denied. The Record is complete.

Cadet Smith was a senior when the trial began. He was within months of graduating from the Academy, but he was expelled. No Clemency was granted. His career was ruined. His life was irreparably harmed. For ten years he was required to register in the State of Texas as a Sexual offender. He married, had children, and for ten years he was not allowed to attend the birthday parties of his children.

This Case has been hotly debated in certain quarters. The Coast Guard has tried its best to forget that this court-martial ever occurred. However, I fear that this Case will be debated and talked about for years to come. Long after the political and social climates that gave rise to this Case have abated; cadets, officers, politicians  and parents will be discussing the Webster Smith Case.

What distinguishes this book from other books on the Case is that this book distinguishes how the Coast Guard Legal Officers and the senior Academy officers disposed of this case as opposed to other cases with similar fact patterns.  This Case will serve as a witness to an era in the United States Military and its Service Academies that was ripe with cultural and ethical upheavals, proceedings with plenty of due process and  little justice, sexual assaults in the military, retaliation against whistleblowers, mind blowing results, aggravation and frustration.  

The Case of Cadet Webster Smith, The Last Word

Title ID: 6293877

ISBN-13: 978-1533400802

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The Case of Cadet Webster Smith, The Last Word

Unrestricted Coast Guard Chronicles Vol 02 Nr 01

BY_AUTHOR Judge London Steverson

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ISBN-13: 978-1533400802

6" x 9" on WHITE Paper

(198 pages, Black & White)

15.24 x 22.86 cm

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Interior: The Case of Cadet Webster Smith, The Last Word - updated version edited 2- formatted15Apr11.docx

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Cover Finish: Glossy

Cover: cover-creator.pdf

The Case of Cadet Webster Smith, The Last Word

Title ID: 6293877

ISBN-13: 978-1533400802