Pikeville, KY (PRWEB) October 26, 2012
Attorney Hall’s SSA Prediction Comes True
Nearly one year ago prominent Social Security Attorney Charles T. Hall wrote that he was "skeptical" that an investigation into the Huntington, West Virginia Social Security Hearing Office would "ever come up with evidence of serious criminal offense.” Hall's prediction, made in his popular blog on Social Security (socsecnews.blogspot.com), has come true.
Last month a U.S. Senate subcommittee issued a report after conducting an extensive 18-month investigation into alleged problems within the Social Security Administration, both in West Virginia and elsewhere. The subcommittee investigation was commissioned by Senator Tom Coburn (R-Okla) after a series of Wall Street Journal articles on disabled Social Security alleged problems.
The 136-page Senate report makes no allegations of wrongdoing. Instead, the report focuses primarily on its conclusion that certain Social Security benefit claims are being granted by the SSA “without properly addressing insufficient, contradictory and incomplete evidence.” The report cites examples to support its findings. In particular, the report discusses Judge Howard O’Bryan of Oklahoma City, who it says awarded benefits for about 90 percent of over 5,400 cases from just 2007 to 2009, the majority of which were decided “on-the-record” which means without the need for a hearing. The average lifetime disability award costs taxpayers $300,000. These concerns prompted Senator Coburn to ask during a hearing on this issue whether “benefits [are] going only to those who are supposed to be getting to them?”
Overall, the report concluded that the Social Security Administration improperly awarded benefits in more than 25% of the cases it reviewed, which were decided between 2006 and 2010. This does not mean that these claimants were not entitled to benefits but rather that, according to the report, their claims were not sufficiently evaluated prior to an award of benefits. The report also found that since January 2009 the Social Security Administration has placed another 5.9 million Americans on disability. This may be as a result of the difficulty of finding work in a sluggish economy.
One reason cited by the report for the Social Security Administration's insufficient process was that some ALJs appeared to assign more weight to medical reports and records from claimant’s attorneys than to the doctors who performed reviews and evaluations for the Social Security Administration. The report stated, however, that sometimes these attorney-provided medical reports were no more than one- or two-page forms.
The report also set out problems with the quality of certain hearings that the Senate staff examined. The report found that some judges held hearings that were so short that it would have been difficult to adequately assess the credibility of the claimant. Further, in some of these hearings questions were only asked by the claimant’s attorney and no questions were asked by the ALJ.
The Social Security Administration has three ways that benefits can be awarded. The first of these ways is to find that the claimant meets or equals a medical listing. Medical listings do not permit much flexibility for the ALJ’s as the standards for medical listings provide specific medical requirements that are met or not met. The second of these ways is to use what are called the medical- vocational guidelines. The medical-vocational guidelines consider the claimant’s chronological age in combination with the claimant’s vocational history. The medical-vocational guidelines were established to obviate the need for vocational experts in many cases. The medical-vocational guidelines give great weight to the age of a claimant. A claimant between the ages of 50 to 55 years of age is considered an individual closely approaching advanced age. A claimant between the ages of 55 to 60 years of age is considered to be of advanced age. The underlying notion of the medical-vocational guidelines is that claimants with more chronological years find themselves with less job opportunities. The third of these ways is based on vocational factors. Vocational factors primarily include the work history and age of the claimant in combination with the claimant’s medical problems. In order for the ALJ to grant benefits because of the vocational factors the use of a vocational expert is generally required at the claimant’s hearing. This third ways allows significant discretion on the part of the ALJ whether to grant or deny benefits.
The report indicated that the Social Security Administration was using the medical-vocational guidelines four times more frequently than the medical listings. In the past, the ratio of cases granted on the medical-vocational listings was not so high.
The report suggested to the Social Security Administration that it should consider having its own lawyers at disability hearings. The report indicated that the Social Security Administration having its own lawyers at disability hearings would assist in the ALJ’s considering all of the evidence and providing more thorough decisions. This has been tried by the Social Security Administration in the past, however, and was not successful. The ALJ is already expected to consider the SSA's interests during the hearing.
In the early 1980s, the Social Security Administration initiated a pilot project at selective hearing offices throughout the United States to test the effect of the Social Security Administration being represented at hearings. In a 1985 congressional hearing the Social Security Administration released preliminary information from the pilot project that suggested that ALJ awards made in error could be cut by 50% if the Social Security Administration were represented at appeal hearings. The Social Security Administration halted the project because of a court injunction issued in July 1986. The court concluded that the entire notion of having the Social Security Administration represented at the hearing violated procedural due process. In May 1987 the Social Security Administration concluded that the pilot project should be halted permanently because the administration resources committed to it could be better used elsewhere.
The report discusses decisions from several different ALJ’s. One of whom is former ALJ David B. Daugherty. Allegations have been made regarding Daugherty of judicial wrongdoing. From 2006 through 2008, the report found that Judge Daugherty rendered 3,645 cases approving benefits in the vast majority of these cases. This prompted complaints from some in the legal community about the volume of cases brought before the judge by one lawyer. The lawyer, Eric C. Conn, was the third highest paid lawyer by the Social Security Administration.
The report found fault with the thoroughness of ALJ Daugherty’s decisions but did not report any findings suggesting legal wrongdoing by Judge Daugherty. The report found fault with some practices of attorneys who appeared before Judge Daughtery, but the report did not make any findings suggesting wrongdoing by Attorney Conn.
The Social Security Administration’s spokesperson Mark Hinkle has stated that “[w]e share the subcommittee’s concern that a small number of judges have failed our expectations with regard to a balanced application of the law, proper documentation, proper hearings and proper judicial conduct[.]” Further, Hinkle said that the Social Security Administration does “recognize the need for further improvement and are working hard toward that goal[.]”
Michael J. Astrue is the present Commissioner of the Social Security Administration and was sworn in on February 12, 2007 for a six-year term that expires on January 19, 2013. Astrue was appointed by Former President George W. Bush. Commissioner Astrue has been praised for succeeding in significantly reducing the Social Security Administration’s backlog of disability claims. Astrue has been outspoken as Commissioner.
President Obama and his Republican opponent Governor Romney have sparred over matters large and small in this month’s three presidential debates, yet when it came to one of the most pressing economic issues facing the United States, the two candidates were entirely quiet. There has not been a single discussion about the president’s role in appointing the next commissioner to head the Social Security Administration. The Commissioner of Social Security is statutorily authorized to “adopt reasonable and proper rules and regulations to regulate and provide for the nature and extent of the proofs and evidence and the method of taking and furnishing the same in order to establish the right to [Social Security] benefits[.] This appointment is important because the “Commissioner may be removed from office only pursuant to a finding by the President or neglect of duty or malfeasance in office.”
While politics and allegations will continue to play a role in the Social Security Administration, as it does with most federal programs, the Senate report was a helpful review of certain Social Security Administration practices, making suggestions and recommendations that will likely be considered by the Social Security Administration as it goes forward. The Report also confirms Mr. Hall's prediction made last year - that despite the politics and allegations, no serious wrongdoing at the Social Security Administration offices was found. For more from Mr. Hall visit his blog at (socsecnews.blogspot.com).